man
who stabbed me first on the edge of my left hand, but unfortunately
the deceased was between me and that man. I did not intend to stab
the deceased. I wanted to injure the man and accidentally stabbed
the deceased."
As
a result of this explanation the learned magistrate entered a plea
of "not guilty."
The
following witnesses were called by the State to testify on behalf on
the prosecution.
Dr
R J Moisel, the district surgeon who conducted the post mortem
examination on the deceased.
Mr
Moses Mabedi who was the driver of the vehicle in which the
deceased was when stabbed by the accused.
Ms
Klasina Harabes, a cousin of the deceased.
Constable
Clifford Molander, a member of the Namibian Police who arrested
the accused after the incident.
5. James
Cohan, the present investigating officer.
For
the defence the accused testified as well as his sister, Clementine
Sabata. In addition Mr Tommie Petrus, the original investigating
officer was called by the Court acting mero
moto.
Dr
Moisel's main findings and observations contained in his
viva voce
evidence appear from the following passages:
"My
findings were the following. There were quite severe blood staining
of the clothing. There was single laceration of the right anterior
chest. The laceration had straight, clearly defined boarders and it
was situated six and a half centimeters to the right of the midline
of the chest and 9
centimeters
below the clavicle. Round about here, as I'm indicating now, the
cause of that injury further down is it enters the chest wall just
to the lateral side of the sternum, the breast bone above the fourth
rib, so it went only through the muscles. Inside the chest cavity it
went through the pleural space, the lung space, without injury of
the lung and it enters the heart sac on the interior surface of the
heart sac and below that it penetrated the right ventricle, the
right main pump chamber of the heart where the track ended. There
was blood in the pericardial sac, the heart sac and there was blood
in the right lung cavity."
On
questions by Ms Hongonekua that the doctor said:
"The
force necessary to cause such a wound I would describe as being
moderate, the reason being that no bony or cardial structures were
traversed so all the injuries I describe, all the tissues traversed
were soft tissues."
It
was put to him by the Court that a person could actually have used a
lot of force but because of the soft tissue it could also have been
done with moderate force. "So no more than moderate force was
necessary?" Dr Moisel replied: "That is quite correct."
Now it will be noted that in his first answer the doctor used the
words "the force necessary to cause such a wound" . That
does not mean that in fact that only moderate force had been used.
In further answers the doctor said, "The injury does
not preclude a severe
amount
of force The direction of the stab was in
a
medial direction downwards and to the middle My
opinion, in this
specific case, would be that it must have been a stab wound because
the tract of the wound is much longer than the transverse. The
longitudinal length of the wound is much longer than the transverse
diameter of the wound and also a cut would probably have gone across
the ribs." Then he continued, "Or it would have met with
resistance from the ribs and you would have seen that. So I would,
my opinion would be that this is much more likely a stabbing force
than a cutting force."
Under
cross-examination by Mr Christians about the length of the wound and
the probable length of the blade of the instrument the doctor said:
"It could be smaller." This is now when he referred to the
3 centimetres width of the wounds and the possible instrument. "It
could be smaller. The maximum and the minimum length, I would say,
is 7 centimetres" and he continued, "It could be longer."
Further under cross-examination he said, "I cannot agree that
there is a really material difference in the length of the blade and
the minimum length that I have specified." And on a further
question by Mr Christians he said: "So under severe force an
assumption I would say it would be more likely that the knife would
have gone in up to the hilt, wherever it stopped."
Now
in the written post-mortem report which was handed in as EXHIBIT A
the doctor said under paragraph 4, page 2, the following wound was
present, "Laceration right anterior chest, 3cm long, with
straight, clearly defined borders. It was situated 6.5cm to the
right of the mid-line and 9cm below the right clavicle. Further
cause of injury described below." He said: "Laceration
described under section 4
above
enters the chest wall through an incision directly to the right of
the sternum and 12mm above the fourth rib. Length of this incision
3cm. Inside the chest cavity it traverses the pleural lung space
without injury to the lung. It enters the heart sac pericardium on
the anterior surface through an incision of 6mm. The tract of the
incision enters the right ventricle main pump chamber, pumping the
blood to the lungs and the heart through an incision of 10mm. The
tract ends inside the right ventricle. The direction of the tract
runs in an infero medio (downwards and to middle direction) . The
length of the entire tract was at least 7cm but could have been as
much as 15cm."
It
is clear from his evidence that the blade of the knife used was at
least 7 cm in length and its width at the hilt 3 cm, or slightly
less, but not substantially less.
Now
Mr Mabedi's evidence was to the following effect. For some time
prior to the incident he had developed a relationship with the
deceased. On the day of the incident he made an appointment with her
to meet her later that evening. He actually met her and after
certain of her friends had left who were present at some time she
was sitting in a parked vehicle, on the passenger side, and Mr
Mabedi was sitting behind the steering wheel and they were talking
about their relationship. According to him they were not necking or
kissing or hugging at any time immediately prior to the incident.
Whilst they were sitting talking the accused was noticed and when
the deceased noticed the accused she said there is the person, or
words to that effect and the deceased then apparently told him to
move the vehicle. He started his vehicle and moved forward but
before he did so he noticed that the accused had moved from roughly
the left side of the vehicle to the driver's side and when the
vehicle started moving off the accused jumped onto the back of the
pick-up truck from the right-hand side. From that position the
accused shifted to the left hand side of the vehicle and whilst
still inside
the vehicle opened the left front door of this bakkie, put in his
hand into the cabin, of the cabin of the vehicle through the open
door and stabbed the deceased who was at that time sitting straight
up in the passenger side of the front seat of that particular
vehicle. According to Mabedi he did not see whether the stabbing
instrument was a knife or a screw driver.
Some
particular points of relevance in his evidence that need to be
mentioned in addition to this general picture is the following.
Mabedi said: "That's right, Your Lordship, and after the
accused stabbed the deceased she grabbed her,
(it
means him) , on his hand. Your Lordship, in order to avoid that he,
she couldn't stab her the second time or again." He said that
at that time the vehicle was in movement, but very slowly. He
further said that then the accused jumped from the vehicle and ran
away. As to why he did not see precisely what the weapon looked
like. He said,
"I
saw an object in the accused's hand, Your Lordship, but most of the
time I was looking forward, or in front, and I
could not make out, Your Lordship, whether it was a knife or whether
it was a screwdriver." Then he was asked whether the accused
said anything to him or to the deceased before the stabbing and he
said, "Nothing, Your Lordship." It was put to him, and
yes, he was asked was there any fight between you and him and he
answered, "No, not at all, we didn't even talk to each other."
It was then put to him, "And if the accused person says that
you first stabbed him and he wanted to stab you, that's why he
accidentally stabbed the deceased, would that be a correct version?"
and Mabedi replied emphatically and firmly, "Then he will be
lying, Your Worship.". He was asked about the alleged kissing
and hugging and he said, "No, I didn't kiss. I did even not hug
her, Your Lordship, and she was not even seated against me, Your
Lordship, or next to me." As to what the deceased had said
immediately upon noticing the accused before the stabbing the
witness said, "She said, Your Worship, here is the person. She
said watch out, drive, here's the person" and when it was put
to him by Mr Christians. "Yes, she became frightened. She told
you to drive off because she was scared. She knew there might be
trouble, this is her boyfriend," he said: "Yes, Your
Lordship, I drove off for the reason that it wasn't my vehicle, Your
Lordship, it was my work vehicle, Your Lordship." As to this
point it later became quite clear that he wanted to get away from
the accused and in his mind there were two considerations and those
were that the deceased was afraid and she suggested he must drive
off and at the same time he knew he was using his firm's car and he
did not want any incident to happen which may damage the vehicle.
And basically for those two considerations he pulled away and he
pulled away slowly and he drove slowly, relatively slowly until the
deceased was actually stabbed.
During
cross-examination Mr Christians put it to Mr Mabedi that the accused
had actually jumped onto the vehicle, "he actually dived
into the vehicle, into the back." And the Court wondered what
that might mean and the Court asked, "He dived into the
vehicle?" and then Mr Christians did not manage to explain what
he meant by diving onto the vehicle, but the witness, Mabedi,
reiterated that the accused jumped cnto the vehicle. The other term
used by Mr Christians was that "he threw
himself onto the back of this pick-up" and it's that
proposition that he followed up, that the accused actually dived
onto the vehicle. Mr Mabedi further affirmed that the doors and the
windows on both sides were closed on the relevant day, but the doors
were not locked. He also explained that it was not a hot day in
Swakopmund and at a later stage that the wind was blowing to some
extent. It was put to him by Mr Christians that he had pulled away
at great speed and was driving in a zig-zag manner, trying to get
the accused off the vehicle and Mabedi again reiterated "I
didn't
pull away on a high or fast, I
didn't
drive in a zig-zag manner." I
pulled
away slowly, turned the car and I
drove
ahead, nor did I
attempt
to drive or to yes, to drive the accused off from the vehicle. "
Then,
on the issue of where the deceased was sitting at the particular
stages it was put to him that if the door slammed closed when he
turned the vehicle it must have been as a result of the turning
and the witness agreed with that. Then it was put to him or he was
asked where the deceased was sitting at that stage, that is when
Mabedi turned the vehicle and Mr Mabedi said "she leaned"
against me. He explained further: "Your Lordship, from the time
I started driving the deceased was seated straight up. At the time I
was
making this turn up to the stage when the door slammed closed, it's
then when she leaned against me, Your Lordship." In his further
evidence in explanation he said that he thought "that she
became weak and that this is the reason why she leaned against me."
This statement must be seen in the context of .a fact which is
common cause or not in dispute, namely that the deceased at that
stage had a fatal wound and that she was helpless in due course. She
was carried into the hospital and she was probably unconscious and
died soon afterwards. Then the witness said: "The accused
jumped, Your Lordship and after he jumped off, it's when I drove the
vehicle and made a turn, Your Lordship and in the process of making
a turn I
looked
in my rear mirror and in this mirror, it's when I saw the accused
standing, however I couldn't see the object he had in his hand."
Then Mr Christians put it: "Yes, it is like I have it. He in
fact, he fell on the ground, he fell flat on the ground and
thereafter he stood up." So that was a propositioning put by Mr
Christians, that the accused fell flat on the ground and thereafter
he stood up. And again the witness reaffirmed that the accused
actually jumped from the vehicle and he saw him running, but he does
not know whether he actually fell flat after jumping from the
vehicle. He also explained that "What I said
is that accused jumped while the vehicle was in a standstill
position and when I made the turn I looked in my rear mirrors and at
that stage it's when I saw him then running." And later on he
explained on further questions "Your Lordship, after he jumped
off I again looked in my mirror and I saw him running, Your
Lordship, I don't know whether he had fallen flat to the ground or
what." And he also explained subsequently that in the cabin of
the vehicle there is a rear mirror, a rear view mirror actually and
through that one can see what's going on the back of the vehicle.
And he also explained that on occasion he looked into the mirror,
the rear view mirror to see and sometimes he actually looked
backwards. Mr Christians also put to him "So if the accused say
that he did not jump off the vehicle, he fell, you cannot, you are
not in a position to dispute that. Do you agree with me?" And
the answer was, "Yes, Your Worship, I don't know whether it is
a misunderstanding between me and the interpreter but I will repeat
once again that when one is in a vehicle, Your Lordship, one can
look forward, quickly backwards and it's through the rear view
mirror as well and one in that short time, Your Lordship, ycu can
see what's happening on the backside of the vehicle." It was
put to him that the window was not closed, the window was open and
"the accused leaned over to your side, shouting to you to
stop." "Thereafter", according to Mr Christians, "he
put his hand through in order to pull out the keys, but you stabbed
him with something on his hand." The witness denied that and
subsequently Mr Christians indicated that there was some mistake
about this and that actually the accused did not try and pull out
the keys. Mr
Christians
also put the actual way in which the accused allegedly leaned over
and leaned into the vehicle as follows and I quote from page Gl of
the record: "Yes, he moved to the left and then he got hold of
this rail and he leaned into the vehicle. The door was never open.
The window was open and he leaned through the window and he pushed
his arm through and at that stage the deceased was sitting right
next to you, against you." Now that question gives the
impression that, according to the defence, more than the arm was put
through the window, because Mr Christians said "he leaned into
the vehicle, he leaned through the window and he pushed his arm
through." It was not just an arm pushed through, but apparently
the person leaned through the window and put his arm through. And
what is important furthermore is that Mr Christians at this stage
emphatically put it to the witness that the deceased was sitting
against him at that time and the Court even repeated for emphasis
this proposition. The Court said: "Against you? You were close
together, she was sitting against you at the time when accused put
his hand with his knife into the cabin?" Mr Christians said:
"Yes." And then the witness said: "Your Lordship, the
windows were closed. The deceased was not sitting next to me. I
already indicated to the Court where and at which position she was
seated." And then Mr Christians continued, again using this
strange expression. "And while leaning through", that
supposes with his body, to seme extent, "he was at that stage
attempting to stab you, to injure you because you also hurt him on
his hand and you were driving in a swerving manner, a zig-zag manner
when he made that stabbing movement towards you." So there
were two clear propositions again, he was leaning through and that
the stabbing movement, the stabbing was carried out when, at the
time of the stabbing, the witness Mabedi was driving the vehicle in
a swerving and zig-zag manner. Mabedi said, "No, Your Lordship,
the accused is lying, Your Lordship. He was not of the intention of
stabbing me, he was of the intention of stabbing the deceased, Your
Lordship, as he did stab her." Mr Christians placed his
proposition beyond any doubt when he repeated as follows and I quote
from page 61: "And while in his attempt to stab you he had a
knife like you indicated and he made that movement, because you were
driving zig-zag and when he stabbed, the knife accidentally moved
this side and he stabbed short. That's why he stabbed her on this
side." It's clear from that that the defence's version at that
stage was is that the stabbing took place at the time when the
vehicle was moving zig-zag and this was the cause, one of the causes
why the accused stabbed short and so hit the deceased instead of the
driver. And strangely enough this came through again and again. So
e.g. Mr Christians said: "Yes, I can tell you what his
intentions was because you cannot say he wanted to hurt you, that's
why he came around the vehicle to you and when he entered, when he
leaned into the vehicle, he wanted to hurt you. You cannot say that
that is not the truth." So this leaning into the vehicle
appears to be something quite different from just saying he pushed
or put his arm into the vehicle. Because if it was only his arm and
not more of his body leaning into the vehicle or the rest of his
body or part of the rest, you would simply only have said time and
again, he put his arm through the window. Up to that stage of all
this cross-examination and putting the defence's case, Mr Christians
did not put to this witness that the accused was actually sitting
with his backside on the side, with his backside hanging over the
side of the vehicle, with his head on top of the cabin and with only
his arm going into the vehicle. The later version of his head "on
top of the cabin" appeared to be an attempt to explain the
so-called "accident" by alleging that he could not see
inside the cabin.
Klasina
Karobes
is a cousin of the deceased and when she testified she told the
Court when the matter was reported to her she looked into the car
and saw: "The deceased actually seated in a fold-up position on
the left seat, lying towards the driver. Leaning with her head
towards the right side." According to her the deceased was
still sitting on the left side but she was in a collapsing position,
fold-up position with her head leaning towards and against the
driver and she explained that the accused at that time was still
breathing, but she was grumbling. I suppose what was meant was that
the deceased was rattling and was unconscious. The witness further
testified that she saw the accused later that evening at the
hospital and as to his condition she testified: "Your Lordship,
his speech and his appearance was normal and he appeared normal to
me. Even the way he walked was normal, Your Lordship." She also
said that he never, in her presence or at any stage said that the
driver had stabbed him. Mr Christians questioned her about the
relationship between the accused and the deceased and he wanted to
have her assurance of how intimate and good this relationship was.
Mr Christians put it this way. "Now, according to what you know
about the relationship between the accused and the deceased and from
past events and happenings, what would you say, do you think
something like this was possible? That the accused would at a
certain stage go to such extremes as to kill the deceased or can't
you say?" And immediately the witness said: "Your
Lordship, actually, in fact, the accused was assaulting the
deceased." And the Court said: "What?" and the
accused said "The accused was assaulting the deceased on
occasions, Your Lordship and also however I didn't see it myself,
but she used to come and report it to me and on an occasion he also
stabbed her with a knife on her arm, but she didn't report it to the
police as well." Now, it was clear that Mr Christians was taken
aback by this evidence and he immediately said "but accused
will deny this." He says it never happened, he never fought
with her, he never assaulted her previously. And the witness said:
"Your Lordship, actually I didn't involve myself in their
relationship, Your Lordship, so I (indistinct)." The Court
pointed out to Mr Christians that he actually opened up this
evidence which was now given. I must point out at this stage that
obviously, in view of the fact that this witness did not see these
assaults, her evidence is in the form of hearsay, but in a sense
it's relevant, because she was asked her opinion about the allegedly
wonderful relationship between the accused and the deceased. And
what is admissible in that evidence is merely the fact that the
relationship could not have been that good because the deceased had
accused
the accused of having assaulted her. So it's not the question of
the truth of the fact of the assaults, but the question of the type
of relationship, in the sense that whether true of false, the
deceased had complained and made allegations about the accused and
the mere fact of those allegations that she made, indicates and is
admissible evidence that the relationship could not have been that
good because whether these allegations were either true or false.
Even if it is accepted that they were false, it nevertheless showed
that the deceased made that type of allegation against the accused
before the incident and that means that, as far as she was
concerned, the relationship was not that good.
Clifford
Mo lander
was the policeman who arrested the accused cn the evening of the
incident. He saw, according to him, no wounds on the accused at the
time of the arrest and thereafter he saw no blood on the clothes of
the accused and he described the condition of the accused when he
arrested him and when he dealt with him as very normal. Now it "is
true that Mr Christians managed to indicate that this witness had a
bad memory and could not be relied on. This witness, for instance
talked about 2 wounds and sometimes about 3, 2 of which were
apparently covered with plaster and seme bandages on the body and on
the neck. More particularly he mentioned that the wound on the neck
was covered by plaster. Now that may indicate that he is completely
confused about the identity of the victim. On the other hand he
testified that the nurses were trying to resuscitate, to save the
deceased and it may just be that the plaster which he saw on the
neck has a simple explanation namely that the medical staff may have
given the deceased some injections or done something surgical to try
and assist her and to try and resuscitate her. So although the Court
agrees with Mr Christians that this witness apparently had a bad
memory and cannot be relied on, one cannot completely ignore his
evidence as to the condition of the accused on that evening and
whether or not the accused showed him any wounds and gave him any
explanation whatsoever. Mr Christians put to the witness: "Are
you quite sure about that? You remember not seeing any injuries on
the accused?" "It's correct, Your Lordship." "Did
you ask him whether he had any injuries?" "No, Your
Lordship." So for what it's worth he did not see any injuries.
He couldn't remember having seen any. And as far as this witness is
concerned accused also gave him no explanation after he had warned
the accused in accordance with judge's rules.
The
witness James
Cowan
is not of any importance and no relevant evidence was given by him.
Now
the accused
testified. Obviously his evidence, his explanation is crucial. He
seemed to accept that the deceased told the driver that he should
drive off and the accused said: "She strutted because she got
frightened, Your Worship or in a frightened manner." So it is
quite clear that he accepted that the deceased was frightened. Then,
according to the accused, he not only talked to the driver when he
was standing on the right hand side of the right hand window of the
vehicle, but after he, the accused, had shifted on the back of the
bakkie, from right to left, he again spoke to the driver and he
said, "Well, let's talk or not." And then he continued:
"Then I take out my knife, I hold on the-bar with my right
hand, I put in my left side hand with the knife in order to stab the
man. I then stabbed the deceased and when he turned I fell off from
the car." It's quite clear from this that there were two
occasions when, according to the accused, he spoke to the driver.
And then the accused said: "At the time I stabbed the car was,
as your witness indicated, driving in a zig-zag manner" which
was in line with the position taken by Mr Christians in
cross-examination. Then the Court asked the accused, "Why did
you stab when the car was going in a zigzag manner? Why did you
stab?" And the accused said: "Before I stabbed the car was
riding straight, at the time when I said he should stop the car and
this way I came to think that, at the time that the car started
moving in a zig-zag manner I thought that I had stabbed the man."
So that seems to indicate that, according to the accused, after he
had stabbed, the vehicle went in a zig-zag manner and because of
that he thought that he had stabbed the driver. In other words the
zig-zag driving was now caused by the fact that the driver was
injured. This came out later again. The Court asked him: "I
thought you said a moment ago that you stabbed, when I asked you why
did you stab when the vehicle was going in a zig-zag manner, you
said but you stabbed when the vehicle was still going straight."
And he said: "Yes, Your Worship." The Court said: "Is
that correct?" And he said: "It's correct, Your Worship."
Then the Court tried to get some clarity on this ambiguity and the
Court specifically asked him again, "But when
you actually stabbed, is it right that you said when you actually
stabbed the vehicle was going straight and not in a zig-zag manner
at that stage?" And he answered: "That's right, Your
Worship, it was moving straight." And later on he said: "Your
Worship, actually at the time I was in the car, at the time I was in
the car and I put in my arm into the cabin side I couldn't see
there." And he further said: "I couldn't see inside the
cabin" and he continued: "And by then the deceased led",
(that means in correct grammar, "was leaning towards the man,)
Your Worship, the time perhaps when I put in my hand." Then the
Court asked him: "We have got it now. Can we accept now that
when you stabbed a person, whoever it was, the car was going
straight and had not yet started to go zig-zag?" "That's
right, Your Worship, it was moving straight." "And you say
you stabbed, ycu couldn't see who you stabbed because it was dark?"
"It was dark, yes, Your Worship." And then, on further
questions he said: "They were both seated on the sides, Your
Worship, of the vehicle and just before I placed in my hand, it is
when she moved to the side of the man, of the driver." "So
at the time you put in your hand to stab, according to you, she was
sitting close and against the driver?" "It was the time
when she started shifting, Your Worship, towards him." So that
now is the further point which became clear, that the allegation at
that stage was that the deceased was sitting next to the driver at
the time of the stabbing and had shifted towards that position just
before the accused had placed his hand through the window with the
knife. But then at a later stage on questions by Mr Christians the
accused said: "I was very aggressive,
Your
Worship, very aggressive." And later on the question was "And
after you stabbed, what happened?" "It's when the car then
moved in this zig-zag manner, Your Worship, made a turn, I fell off
from the car." Now here again it becomes clear that his case
there is that the zig-zag movement began after the stabbing.
The
accused also testified that the injuries he sustained was an
abrasion and at one stage he said it is the ones between the knee
and the "bobeen". He later said, when he dealt with what
he told his sister shortly after the incident: "I told her.
that I found my girlfriend with another man and that the man injured
me with a sharp object on my hand and that I stabbed a blow into the
car, but I dcn't know if anyone had been injured." It was then,
to make it clear again, the Court asked him: "So at that stage
when you told your sister the story, you did not know whether anyone
had been injured?" "I didn't know, Your Worship."
Then on further questions, he said: "There was no blood on the
knife. If there would have been any blood there would only be blood
from the injury on my hand." Now that's a strange answer,
because anyone would know that if ycu stab somebody and you pull out
the knife there could be blood on the knife as well as on your hand,
particularly if you pushed the weapon up to the hilt into the body
of the victim. And there he said: "There was no blood on the
knife as I've indicated." A moment later he said: "There
was blood on the knife, Your Worship." And the third effort was
he didn't look at the knife, it was dark, so he doesn't know.
And
about what happened to the knife on questions by his counsel he
said: "Your Worship, there at the scene he asked me where the*
knife is and he took the knife." So the allegation is that the
original investigating officer, Mr Petrus, at the scene of the
alleged crime asked him for the knife and Petrus then took the
knife. So the issue of whether or not Petrus raised the question of
the knife is quite clear. It's common cause therefor that Petrus
must have asked for the knife and that, in fact, he did visit the
scene together with Petrus. Petrus is also referred to as Sergeant
Thomas. And as to the wounds he said he showed this Sergeant Thomas
the wounds, but Thomas said it is not serious.
Mr
Christians asked his client, the accused, did you want to kill him
and the answer was: "No, I just wanted to injure him as he
injured me." And he continued by replying to a question as
follows: "Actually I stopped him and actually I wanted to ask
this man as to what is the relationship between him and the girl."
And then he gave the following explanation for jumping onto the
vehicle: "Actually the woman, this lady was under my
responsibility, Your Worship, and if they could have driven off and
anything happened to her then they will come to me." So that is
his explanation for jumping onto the vehicle. When he was
cross-examined by Ms Kongcnekua on what was his intention on jumping
into the car, he said: "I only wanted my girlfriend, Your
Worship." And then further, the question was put to him "So
what were you going to do?" and the answer was "Thus for
her to tell me as to what the relationship between her and the man,
and then we can then separate also or end up our relationship."
How this fits into an allegation that he was very angry and the fact
that*it was common cause that he never spoke to his girlfriend when
he was at the left of the vehicle, before he jumped onto the vehicle
and also, he never spoke to her when he shifted to the left before
he stabbed her. The accused admitted that the driver actually looked
backwards on occasions. The accused said in response to a question
"Your Lordship, I could see he was looking backwards and
continued driving." The accused also said that actually he,
(the accused) had a long arm and "If I just sit on the edge of
the vehicle and place my arm into the vehicle I can reach him
easily." On questions by Ms Hongonekua he said that "What
I said is, at the time I placed my arm into the car in the cabin I
don't know, perhaps at that stage the deceased shifted towards the
man, but what I can tell is the time I arrived there at the car the
deceased was seated towards or against the driver, Your Lordship."
Now that appears to be an explanation that he actually did not see
the shifting and the sitting of the deceased against the driver and
therefor the Court attempted again to make absolutely clear what the
accused is trying to say. This happened in the following way. Ms
Hongonekua put it the accused as follows: "So you could see
them?" And he answered: "Your Lordship, at the time I
opened my knife, but the time I placed my arm into the cabin she
moved or shifted to the man's side, Your Lordship." And the
Court then asked: "That you saw?" and the accused
answered: "Yes, I saw it, Your Lordship." And Ms
Hongonekua asked: "How did you see them? Was it through the
windscreen or through the left hand side window and the answer was,
from the rear screen, Your Lordship." So now it was again
placed beyond doubt that he saw this movement, he saw her sitting in
this position next to the driver and he saw this through the rear
screen, that's the rear window of the vehicle. He again explained
that he placed his left arm into the cabin of the vehicle "and
I stretched my arm to full length" and that the width of the
vehicle is not that wide. Now he made it clear that, according to
him, he was sitting inside the bakkie, but on the side of the bakkie
at the time when he stabbed. And then on a question by the Court he
said: "I went up, say up to the shoulder." So the part of
his arm he put into the vehicle was, according to him, right up to
the shoulder. In other words, not the shoulder put through the door
or the window, but up to the shoulder. And that was further
clarified by saying the whole arm. If was now quite clear that
according to him his head was on the cabin and so, for that reason
he could not see inside. He explained why he wanted to stab this
man. He said: "What I wanted actually to state is that this man
stabbed me, I wanted to injure him as well." And on further
questions "I wanted to take revenge." Ms Hongonekua put it
to him "And during your evidence-in-chief you said that you
could not see inside the cabin because it was dark. Is that what you
said? You remember that?" "It's what I said about 5 to 10
times, Your Lordship." Now one must keep in mind, if he
couldn't see into the cabin because it was dark, that's a different
thing from saying that he couldn't see into the cabin because at the
crucial time his head was on top of the cabin. He also said "It's
what I said about 5 to 10 times, Your Lordship." He was
emphatic that he couldn't see inside the cabin because it was dark.
The Court asked him: "What" and he answered: "That is
what I
said
about 5
co
10 times."- Ms Hongonekua then said: "That you could not
see, it was dark?" "That's right, Your Lordship." And
then he explained again that the time when he couldn't see because
it was dark was when he put his arm into the cabin. And then he said
he could not see then because his head was above and that's why he
said he could not see. Then later on he again said that he would
correct himself: "As my head was on top of the roof or higher
than above the roof, Your Lcrdship, I could not see what was their
positions inside the cabin." And he was. asked: "So the
question is simply, was it then incorrect when you said that she had
shifted up to a position next to and against the driver?"
Answer: "It was not correct, Your Lordship."
As
to what he told his sister, he said, "What I
told
her is
that I found my girlfriend with another man. I was
struck
with a sharp object on my hand, but I also striked once
into
the cabin of the car, but I don't know if I did
strike
anyone." And then, belatedly, on a question by the
Court he
said: "I wanted to strike him on his left arm,
Your
Lordship, on his left arm." He was asked "Are you
saying
then that you didn't care whether you would inflict a
fatal
wound or not, because you were angry?" And his answer
was:
"It was just one and the same. If I would have fallen
from
the car and died or even if I could have been nearer and
he
would have stabbed me." And he was warned: "Can you
try
and answer the questions. It's
very important to
concentrate
on what I ask you and to give your best possible answer and a true
answer, can one then accept that you didn't care when you stabbed?
You didn't care whether or not you inflict a fatal wound, a wound
from which a person could die?" The answer was: "I knew
that a knife and a weapon or a firearm, Your Lordship, could kill a
person." "So when you stabbed you knew at the time that
you could kill a person by stabbing him?" "No, I didn't
know, Your Worship." And then about what he said before the
magistrate, he said the following: "Your Worship, the manner in
which I answered the questions actually comes up due to the fact
that I didn't see where I exactly stabbed her or where I struck
her." The Court the asked the accused: "And even today
when I asked you a few minutes ago the question, you made it quite
clear that you realised that if you stab a person with a knife that
person can die?" It's correct, Your Worship. Then the question
was put: "Yes, now that is so, on what ground do you say that
you didn't realise that one of the persons could die as a result cf
your stabbing?" And the answer was: "Your Worship, what I
said is I didn't know that I struck anyone." So that answer was
obviously completely evasive of the crucial issue. The Court also
asked him, "But you know your body and you know the vehicle
there, did you have any ground to think that you could in that way
ensure that you would strike the driver?" And the answer was:
"I wanted to do it like that, I wanted to strike him, but it
happened like that, Your Lordship, now how can I put it again?"
And then he said: "But I don't know how it came that she ended
being there, I didn't stab at a short distance in order to strike
her." And on a further question: "But did she move
towards the driver?" the answer was: "That I cannot tell,
Your Worship." Mr Christians asked him: "And now, just in
conclusion, now when you executed this stab wound towards the
driver, did you know at that stage exactly, precisely, what is now
marked off space where he was sitting or what did you think, what
was your consideration?" "No, I
cannot
tell that, Your Lordship, because I was opposite and I only placed
in my arm." And then further, the Court followed up the
question and he then said: "Your Lordship, but I conclude that
the lady was on the left side and the man on the right side so I
placed in my arm in the cabin and I screeched my arm towards him."
A further questions was now: "When you reached out, did you at
any stage touch the lady there, when you reached over or whatever.
If you had stretched out, did you at any stage come into contact
with her, your body?" And he answered: "Your Lordship, I
felt
something here as the witness indicates, somewhere here on the upper
arm. It's where I felt something." And the Court noted: "He
now demonstrates on the inside of the upper arm from the elbow
higher up, there he felt something." Now, it must be noted at
this stage that that cannot be true, because we know that the
deceased was actually stabbed. So the front part of his forearm must
have been across her body when he stabbed in actual fact and his
allegation that he felt something from the elbow up to his shoulder
is apparently just another effort at deceiving the Court.
The
issue whether he would land on his back and not on his knee or on
his feet if he fell backwards, as to that he explained "After I
struck with the knife inside and actually it was at that stage when
I removed my arm at the stage when the man also started driving in a
zig-zag manner, it's when I fell out from the car." And then he
came with another explanation that actually what happened is that
when the car started turning zig-zag, driving in a zig-zag manner,
he fell not backwards over the side, but he first fell backwards
into the bakkie and that is how he now attempted to explain that he
wasn't actually falling backwards over the side, he was falling
backwards into the bakkie at first. And that was, it seems, a
fabrication just to explain why he didn't fall flat on his back or
on his side. If this was so, the version of the driver, Mabedi, that
he jumped off the vehicle becomes even more probable.
Now
that concludes the main elements of the evidence of the accused. His
sister, Clementine
Sabata
testified that she was a nurse and that the accused, apparently
shortly after the incident, came and told her that he had injured
someone, that he found his girlfriend with another man in the
vehicle and that he had also injured someone as well. Note, not that
he may have injured somebody, but that he in fact had injured
someone as well. What is further significant is that in her first
evidence she said, "I asked him actually as who he injured and
how he injured that person. He told me that he stabbed the girl or
the man." In other words he stabbed somebody but he doesn't
know whether it was the girl or the man. He didn't say that he
thought he had stabbed the man. And then, according to her, she told
him that he had better wait for the police if those are the
circumstances and he indicated that he would go to
the police station himself but he never did so. Then she testified
that she saw blood on his left hand and that he had an injury on the
hand which was bleeding and she actually cleaned up the blood and
tied his hand with a handkerchief. She says there was also an
abrasion on his leg. Then it turned out that she was in Court for
most of the time, at least when all the crucial points of the
evidence of the accused were made. This came up because the Court
actually noticed her sitting in the Court whilst the accused was
testifying and raised that issue with Mr Christians and with her.
According to Mr Christians who gave an explanation to the Court, he
had told the witness to be outside, precisely at what stage is not
quite clear. According to this witness, Mr Christians actually
walked up to her in Court and told her to go outside at the time
when the accused was actually testifying. Now, the Court put on
record that the Court never noticed that Mr Christians stood up
whilst the accused was testifying and that he had gone to the back
of the Court to warn the witness to go outside. All this doesn't
mean that I do not accept Mr Christians' assurance that he at some
stage or other warned the witness to be outside. The point is just
that it seems also quite clear that she was in Court at all the
crucial stages of the accused's evidence and that may detract from
her evidence, because it was her brother, he was charged with a
serious crime and now she knew what points he made in his evidence
here in Court. It was also strange that when it was put to this
witness that surely a person who puts a knife into another person's
body and when you know the knife had gone in deeply and in the upper
part of the body and he withdraws that knife there should be blood
on the knife, on the blade and she said no, she is not trained for
that. She can't say whether there would be blood on the knife. She
again reiterated that the accused actually told her that he had
stabbed someone and that makes it then clear that what he told her,
according to her evidence, was that he had stabbed someone, but he
doesn't know whether it was the one of the other. Now unfortunately
for the State, Ms Hongonekua who possibly did not have the evidence
before her properly recorded or noted when she put her question and
she put it to this witness that the witness had said that "When
the accused came to you he said that he had stabbed someone, the man
whom he found with his girlfriend. Is that correct?" Now that
is not what the witness had said. But nevertheless, Ms Hongonekua
put that incorrect version of what witness Sabata had said to her
and Sabata then said: "That's right." Then subsequently
she again gave the answer: "Your Lordship, upon his arrival,
while I was still interrogating him, he told me that he stabbed
someone." And then she held onto the answer given to the
leading question by State counsel, namely that "He told me that
he stabbed a man." And it also appeared then, according to this
witness' evidence, that the accused had not told her that he found
the deceased and driver in a compromising position, kissing or
hugging or anything else. One would have expected that the accused
would tell her why he was so angry and that is, namely, that he
found them hugging and kissing if in fact they were hugging and
kissing when he found them.
Now,
the Court called the witness, Tommie Petrus, who was the
original investigating officer and who was at the time a member of
the Namibian Police force, but at the time he gave evidence he was
no longer in the police force, but employed by Transnamib. Now this
witness was called to tell the Court about the knife and about
whether he saw any wounds or injuries on the accused. His evidence
was absolutely emphatic about these two things. He said that, as to
the knife, he requested the accused person to hand the knife over to
him, but the accused had said he threw it away. They went back to
the scene to look for the knife, but they couldn't find it. Then he
also indicated that that is the usual procedure .that if somebody
admits that he had scabbed somebody with a knife, he as a policeman,
immediately asks him for the knife. And furthermore that is what he
did on this particular occasion. He asked him for the knife and that
is not in dispute. And then he explained that what he would have
done with the knife is that he would have booked it in at the police
station as an exhibit and afterwards he would have taken the number
of the exhibit book and he would write it on the docket and that was
the usual regular procedure. He also said as to the wound that
accused couldn't have had a wound on the left side of his hand,
because after arrest and probably within 48 hours he took his
fingerprints and in addition one of the forms of prints that they
take in murder cases is this side of the palm of the hand of a
person and if there was any injury or bandage or anything like that,
he must have noticed it and it would have impeded the taking of
those fingerprints and palm prints. It is true that it was pointed
out that the actual prints received back does not show that the side
of the hands were taken or were printed. Some enquiry was made and
it turned out that no such record is available. However, this
witness, when he was confronted by Mr Christians, explained that,
although the print before the Court was taken some two weeks after
the arrest, almost the same time or approximately more or less the
time when accused appeared before Court, that was not the first time
the fingerprints were taken and this was a second set of
fingerprints. That the original set was taken at the normal time
just after the arrest and was sent back because they were improper.
And on further questioning he said that the accused knows that he
had taken the prints the second time and he told Mr Christians that
he could ask the accused and the accused would confirm it. He said
that the accused actually asked him: "Why do you want to take
my fingerprints again? And he explained to the accused that the
first set was not in order and therefor he had to take the second
set. Mr Christians did not however put it to his witness that his
client denies that. Mr Christians also refrained from asking his
client, the accused, whether or not it's true, as alleged by the
witness Petrus, that the fingerprints were taken a second time and
that the accused actually queried that. So it seems to be beyond all
doubt that the fingerprints were taken a second time and that the
fact that no record can be found of the prints of the side of the
palm, does not detract much from the assertion and the evidence of
the witness, Petrus.
The
Court also held an inspection in loco where the accused had to
demonstrate the various positions he took up at the time when he
first moved to the right of the vehicle, at the time when he jumped
onto the vehicle, at the time when he shifted from right to left, at
the time when he put his hand into the vehicle with the knife and
when he stabbed. It was clear from the inspection that the accused
at no stage dived onto the vehicle. It was also at least clearly
established that even if he put in his arm and his hand into the
vehicle, straight up to the shoulder with his head leaning on the
furthest edge of the cabin on the left, then he could barely reach a
point a few inches across the middle line of the seat and that
position would be at least 6-12 inches short of the side of the
driver. If he stood inside the vehicle or sat inside the vehicle and
not with his buttocks across the side, then the possibility of
reaching the middle would even be less and less and when, if he
stood up straight when he stabbed into the cabin, then his ability
to reach further than the seat of the passenger, would be
nonexistent. So it is a fact then that at best for the accused
he could not have managed to stab the driver, not even on his left
shoulder as he stated at a very late stage of his evidence and
examination. That obviously does not mean that it was impossible for
him to have contemplated that he could reach that person and that he
could reach the driver, but the fact that it was in fact impossible
makes it improbable that he ever thought that he could reach the
driver in the way he alleged he intended to reach the driver.
Now,
my observation of the various witnesses are as follows. The State
submitted that the eye witness, Mr Moses Mabedi was an excellent
witness. The response of Mr Christians was a bit uncertain. He
first hesitated to refer to any points where the witness was
unsatisfactory. However, what can be said without -doubt is that he
was not unable to make any convincing submission about the
untrustworthiness of the witness Mabedi and why the Court should not
accept his evidence in the context of all the other evidence. The
Court is in full agreement with the State that the witness, Moses
Mabedi was throughout an excellent witness. He was firm, he answered
questions very well provided those questions were clear and not
ambiguous. He answered those questions with conviction. So he
appeared in every way to be a very reliable witness and the Court
was impressed by this witness and has no reason to doubt his
veracity.
The
witness Klasina
Harobes,
the cousin of the deceased did not testify about very crucial points
in dispute. She however did not see any injuries on the accused and
he appeared normal. Now if, by then, the accused had a bandage
around his hand or was bleeding, she should have seen that. It was
not suggested that she was lying when she said that his appearance
was normal, he walked normally, his condition was normal.
Constable
Clifford Molander,
although he was only the arresting officer, would have noticed if
the accused had an injury, had a bandage and if the accused
suggested to him or told him that he was injured by the driver. Of
course it is possible that in the light of the fact that he handed
over the accused to another investigating officer later that
evening, that he did not give the matter his full attention and he
may be mistaken as to whether or not the accused had given him an
explanation and had shown him wounds and so on.
The
accused, as I have indicated, shifted his evidence and the basis of
his defence repeatedly. The reason how it came about that he stabbed
the deceased, given by him, was ambiguous and contradictory from
time to time. There were stages when, according to him he saw the
deceased actually sitting next to the driver and close to him and
that was just before the stabbing and he actually saw that. It seems
that he then, from time to time realised that this is a dangerous
statement to.make because then it would be said that if she was
sitting next to the driver then surely he must have known that his
blow could strike her. And then his alternate position was to say
well, I didn't see that, the last time I saw her she was sitting on
the left and so on. This story about how he sat on the side of the
vehicle and how he leaned into the vehicle with his arm and tried to
scab the driver on his right hand side is completely improbable. He
was not drunk, he was not out of his senses at the time, according
to his own story and according to all the available witnesses and
how he could have thought that he would strike the driver by acting
in the fashion that he did, is totally improbable. At least he must
have realised at all times that it would be extremely risky and that
he could stab anyone if he proceeded in the manner he did. The
accused was not a good witness, but on the other hand one cannot say
that he made a very bad impression. His whole explanation however of
what he wanted to do on the vehicle, what he wanted to achieve
from time to time and how he managed to stab the deceased,
were not only conflicting, but all his different versions were
improbable.
The
sister of the accused was really unimpressive. A sister who has some
education and training as a nurse, who says that she does not know
whether, if you stab into the body of a person, deep into the upper
body, that the blade of the knife would have blood on it when
withdrawn from the body, is inconceivable. It seems that she wishes
to evade the question in this manner in an attempt to avoid the
obvious conclusion that the accused must have seen blood on the
blade of his knife and must have known that the blood came from the
fatal wound inflicted on the deceased. Her evidence, however, also
in conflict with the evidence of the accused on the important aspect
of what he told her immediately after the incident. The crux of her
evidence-in-chief is that he told her that he found his girlfriend
with this man in the car, he caught them in the car and "he
actually stabbed and injured either his girlfriend or the driver. So
he did realise and he did know at the time, if her evidence is to
mean anything, that he had stabbed one of them. So his whole story
that he didn't know whether he had injured somebody is not only
improbable but is one of the more emphatic lies. Knowing what is
common cause and considering the fact that the weapon he used went
into the body, it was a fatal wound, a direct stab movement, he must
have felt that his knife had gone in, that he had hit, succeeded in
hitting the body and in all probability would have had the blood on
his hand, on the side of his left hand where he held the handle of
the knife. If there was any sort of cut on his hand it could
have been caused by the blade of his own knife when he drove it into
the body of the deceased right up to the hilt.
The
evidence of the witness called by the Court namely the witness ex
Sergeant Petrus was very persuasive. Once you have the position that
he was an experienced investigating officer, according to an answer
elicited by Mr Christians, he had investigated many murder cases, he
told the Court of the procedure, he came here without a statement
and without knowing what the Court was going to ask him or what
counsel was going to ask him and he set out immediately what had
happened, namely: that a knife was not given to him; that he did ask
for the knife; he did go to the scene, but there it could not be
found. Now he is corroborated by the circumstance that the practice
is to write that into an exhibit record. The practice is further to
note the number of the exhibit and it is impossible to believe that
this investigating officer would not have handed in the knife, if
given to him. If the evidence by the accused was that this policeman
never asked him for a knife, that would be a different scenario. If
he was drunk, or was bribed to remove the exhibit as it often
happens, then it is a different story, but here it is common cause
that this detective did ask for the knife and in those circumstances
the fact that no exhibit was handed in, that there is no entry in
the records or in the docket, leaves no doubt whatsoever that the
Court must accept the evidence of this policeman, Mr Tommie Petrus.
That means that on that clear point of conflict the accused
had told the Court a lie without any doubt about at least
the exhibit, the knife. Now, the reason and the probable reason why
he told a lie is that the knife was not an innocent pocket knife as
he told the Court, with about a 5 cm blade, it was a bigger knife, a
more atrocious knife if one looks at the uncontested evidence of the
doctor who did the post mortem examination. The doctor also said
that the edges of the wound were clear cut. So it is not a question
of, both edges, not a question of a pocket knife with, on the one
side a blunt side and on the other side a cutting side, it was a
wound with clear cut edges and so, without finding that it had this
effect, it was probably a knife which had two cutting edges. But
what it dees help to prove is that the knife was not handed by the
accused to the policeman and obviously there can only be one reason
namely that he did not want to have that type of exhibit against him
before Court if there is a prosecution. And he wanted to have it
open to him to say, as usually happens in such a case when the
weapon isn't there, oh well, I just had a small pocket knife like
this or that. The Court rejects the story that he had a small pocket
knife. I must also point out that the entrance wound was 3 cm broad
in length, that means wide. 3 cm indicates without doubt a rather
large blade of a knife at least where the blade reaches the handle.
So 3 cm shows that this is not a small, so-called Red Cross knife
with one cutting side, no sharp points and a blunt side on the other
side. So here then one can start off with one important fact in the
dispute where the accused was clearly lying to the Court.
I
have dealt with the impression the witnesses made on the
Court.
I have dealt with some of the probabilities and if there was time
one could spell out many more. The fact is the accused did strike
the deceased. The fact is that there is no evidence against that of
the driver that the deceased was sitting on the passenger side of
the vehicle. The accused gave several versions about where she was
sitting, viz that he saw her sitting, moving up to the driver and so
on. In the end the best he could come forward with is that he
presumed and it must have been that she had moved on to a position
next to the driver. So there is nothing to controvert the driver's
evidence that she was sitting as a passenger in actual fact on the
passenger side, just before the stabbing. That is further
corroborated by the evidence of the witness Klasina Harobes who,
when she saw the body still in the car of the deceased, that
deceased's lower part was on the passenger seat and she was just
leaning with her head onto the driver as a person would who has no
control over your limbs because you are partly or wholly unconscious
ac the time and you lean against the support that's available. So,
the fact then which the Court finds is that the deceased sat on the
passenger side when stabbed. Now, if she sat on her side when she
was stabbed, then the accused's story that he put in his arm right
over the centre of the seat as he wanted to stab the driver, cannot
be true, because the deceased was in fact and hit when she sat on
the passenger side. So if he ever put in his arm right up to the
driver as far as he can and tried to stretch it right up to the
driver, he could not have struck her, she wasn't there to be struck.
So then the only conclusion there is that he struck her where she
was sitting on the passenger side by deliberately wanting to strike
and injure her. And that is the only way he could have struck her.
His whole story about a long arm reaching out to the driver is
totally improbable. What is further obviously a concoction and a
fabrication is his belated allegation that he actually wanted to
stab the driver on his left hand shoulder. Now if he wanted to do
that, surely he couldn't think that he could do that without looking
into the cabin, without knowing where the people are sitting and so
on. The accused on all the probabilities was obviously very annoyed,
not only with the driver, but certainly equally, if not much more
annoyed with his girlfriend, because it is she who now goes out or
has some relationship or other with another man. And it was she who
said, drive away and she was frightened and that is common cause.
So, a great part of his anger and his revenge would have been
against her. If not, why did he not speak to her? Why did he not ask
her anything? He said he wanted to ask her when he jumped on, but he
never did. Why not? So he had the motive to stab her, he was angry,
obviously, with her, he was jealous and he wanted to take it out on
her. That seems a probability.
There
are many other small points in dispute that one could deal with, but
to sum up: I accept the evidence of Dr Moisel, Mabedi and Harobes. I
accept that the witness, Clifford Molander probably did not see any
wound or blood on the accused, but he could have made a mistake. And
as I have said I accept fully in toto the evidence of Tommie Petrus.
That means also that I reject the story and the defence of the
accused in so far as it conflicts with the version of the
aforesaid State witnesses. Before I conclude I must mention that I
asked counsel to address me on the following interesting and
important legal question: A person who intends to murder A, but by
some miscalculation or error now kills B, could he be convicted of
the murder of B and if so, on what basis. I am happy to say that on
short notice both counsel submitted very valuable and well-reasoned
written submissions to me. I have my doubts about the alleged
present state of South African law on this issue. It seems to me
that it would be the height of injustice if a person can escape
proper punishment by intending to kill one person, doing everything
possible to kill that person, but then kills another by
miscalculation. In substance he has then committed murder, whether
it is on cne person or another. The identity of the person should
noc be decisive. But that remains a complicated issue. I need not
make a finding on that issue of law today. It is my belief however
that this type of legal issue should be settled by legislation at
the earliest possible time. I don't; necessarily accept the
submissions and the conclusion by both state counsel and defence
counsel, but I do not say they are wrong and I do not decide that
issue now because it is not necessary for the purpose of my
judgment.
To
conclude: I find that you intended to stab the deceased in the upper
part of her body knowing that she could be killed as a result. You
intended to kill her whether such intention was in the form of dolus
directus
or dolus
eventualis.
i.e. in that you at
least
foresaw the reasonable possibility that she could die as a result of
the stabbing, but reconciled yourself with that possibility and/or
continued recklessly, regardless whether she would die or not.
In
the result:
You
are found guilty of the crime of Murder.
CASE
NO. CC 12/96
IN
THE HIGH COURT OF NAMIBIA
In
the matter between
THE
STATE
versus
MICHAEL
IVAN OXURUB CORAM: O'LINN, J.
Heard
on: 1996-02-01,
-02, -05, -06 & -07
Delivered
on: 1996-02-29
SENTENCE
O'LINN,
J.
:
You have been convicted of the crime of murder in that on or about
25th September at Swakopmund you unlawfully and intentionally killed
Emma Madam Uiras, - a female person. The person you killed was
actually your girlfriend and this is common cause. When imposing
sentence it is trite law that the Court must consider your personal
circumstances, the nature of the crime you have committed and the
interest of society. Under aims of punishment the the Court must
consider in what way through its sentences it can discourage you or
persons in your position to act in the same way. And that has become
a very important element of punishment for crimes such as murder
because this type of crime, like other crimes of violence, rape and
robbery, have escalated in the last few years and the Court has a
duty as an organ of State to do whatever is possible to also protect
the interest of society and particularly in that sense to protect
the victims, including those who have died but also those who may
become similar victims in future. The only way the Court can really
attempt to discourage this phenomenon of escalating violent crime is
by imposing sentences which would deter you and which would deter
others. There is obviously also the aim of rehabilitation and that
must also be kept in mind.
The
personal circumstances you have put before the Court are that you
are the father of two minor children. There is no indication
whatsoever whether you take the responsibility for these children by
maintaining them. There is also no indication that the children will
suffer if you go to prison for an unduly long period. In those
circumstances the fact that you have two minor children cannot be
regarded as a mitigating circumstance of any importance. What is
important in your personal circumstances is that you have not
previously been convicted of a criminal offence or any crime. The
fact that you are a first offender must be taken into consideration
as a serious mitigating factor. I must point out, however, that most
of the crimes of murder are crimes where the accused persons are
first offenders. That notwithstanding, the Courts in the past have
often sentenced first offenders to death and subsequently when that
could not be imposed, the Courts often imposed a sentence of life
imprisonment on people who are first offenders. So although I must
take that into consideration as an important mitigating factor, that
alone does not mean that you should not go to jail for a long
period.
You
have also testified that you most of the time had a job and you
actually reached the stage of standard ten at school but you failed
that standard. It is a circumstance in your favour that you
apparently, most of the time, intended to better yourself and to
obtain proper employment. It does not seem to me that it can be said
you are a person who make no contribution to society and who is just
a liability.
Then
I must look at the crime, the nature of the crime you have
committed. Murder is a serious crime as also conceded by your
counsel, Mr Christians and it remains a very serious crime even if I
proceed on the basis that your intention to kill is rather in the
form of dolus
eventualis
and not direct intention to actually kill this particular person,
the victim. So I will take into consideration that in this crime
your intention is in the form of dolus
eventualis
in that when you stabbed the deceased you at least foresaw that as a
result of the stabbing she could die and you nevertheless stabbed
her recklessly and without being discouraged by the prospect that
she may be killed. The fact is also common cause that the victim was
your girlfriend for at least two and a half years and you lived
together as man and wife. Mr Christians has argued that you stabbed
and in the result killed her basically as a consequence of your
jealousy because you realised or must have realised that she now was
developing a relationship with some other person. It must be
accepted that what you did was spurred on by your jealousy and by
your emotions. On the other hand this is a case where you did not
find your girlfriend having intercourse with another
person. You
S v Oxurub (CC 12.96) [1996] NAHC 7 (29 February 1996);