2
REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
RULING
Case no: CC 03/2012
In the matter between:
THE STATE
and
MORDEKAI MUTILIFA ACCUSED 1
SAMOKA SYLVESTER SAMOKA ACCUSED 2
MWETWIYELA TIMOTHEUS ACCUSED 3
TIMOTHY MUYAPEKWA ACCUSED 4
Neutral citation: S v Mutilifa (CC 03/2012) [2013] NAHCNLD 45 (16 July 2014)
Coram: TOMMASI J
Heard: 7 July 2014
Delivered: 16 July 2014
Flynote: Criminal Procedure – application for discharge in terms of s174 – multiple accused – four police officers charged with murder of a person who was detained in police custody - witnesses placing accused in area where unlawful assault took place – evidence that they may have witness the assault - failure to act in the circumstances may be construed as an act of association – premature for court to discharge the accused at this stage - application for discharge dismissed.
Summary: The deceased was arrested and brought to the Katima Mulilo police Station where he was held. He attempted to escape from police custody but was apprehended by accused 1, 2 & 4 who brought him back to the charge office. He was dripping wet when the accused brought him back into the charge office. He was taken to an open area. Here he was assaulted and he died shortly after the assault. The court chose not to rely on the extra curial statement of the co-accused implicating the accused who applied for dishcarge. Evidence, though contradictory, placed the accused at the scene of an unlawful assault. The court held that their omission to act could be construed as an act of association and the court thus held that it may be premature to discharge the accused at this stage. The application for discharge by the two accused was accordingly dismissed.
ORDER
Applications of accused 2 and 4 for discharge in terms of section 174 of the Criminal Procedure Act, 51 of 1977 are dismissed.
JUDGMENT 174
TOMMASI J
[1] The accused herein are charged with murder. The four accused are police officers who were on duty the evening of 20 – 21 March 2011. Accused 1, 2 and 4 were part of a special operation geared to prevent crime and accused 3 was on duty in the charge office that evening. The deceased was arrested and brought to Katima Mulilo police station.
[2] The State in its indictment avers that the four accused unlawfully and intentionally killed the deceased on or about 21 March 2011. In the summary of substantial facts the State indicated that the four accused assaulted the deceased resulting in his death soon thereafter.
[3] The State led the evidence of a number of State witnesses whose testimony sketches the events of the evening of 20 – 21 March 2011. The deceased was amongst one of several persons who were arrested and taken into custody for “drunkenness”. They were kept at an open space behind the charge office which was a cell where some offenders were detained. The deceased was first placed behind the counter in the charge office where he was held in custody whilst the other persons were being “booked in”. The deceased was without injuries at this time and his clothes were dry.
[4] From the evidence adduced by the State it may safely be accepted that the deceased attempted to escape. He was found behind the office buildings by accused 1, 2 and 4 and brought back to the charge office. The deceased was soaking wet when he was brought back although no evidence was adduced that it was raining that evening. According to the officers who were on duty in the charge office some measure of force was used by accused 1, 2 and 4 to subdue the deceased as he was resisting. The charge office personnel did not witness any assault in the charge office.
[5] The charge office sergeant testified that accused 1, 2, and 4, followed by accused 3 took the deceased to an open space where the other persons arrested for drunkenness were detained. The officers in the charge office could not see what was happening in this area but confirmed that accused 2 and 4 entered the open space with the deceased. They testified that they heard a commotion and a female screaming for help. Accused 2 and 4, according to their testimony, left after they heard the commotion. The charge office sergeant testified that accused 2 informed her that “I do not think that person will survive. The way accused no 1 kicked that person in the chest, maybe that person died”
[6] The State called several witnesses who were present in the open area. Most of these witnesses knew accused 2 and 4. None of these witnesses identified accused 2 and 4 as the police officers who assaulted the deceased or indicated that they were present in the open area. Only 1 witness testified that accused 4 brought the deceased his cell phone and left thereafter. This evidence was not corroborated by any of the other witnesses who were present in the open area.
[7] The State handed into evidence the extra curial statements of accused 1 and 3 wherein they implicate accused 2 and 4. Accused 1 implicate accused 2 and 4 for having ordered the deceased to take a cold shower which would explain why the deceased was soaking wet when he was brought in from behind the officers of the police station. He further implicates accused 2 and 4 in the assault which took place in the open area. Accused 3 only implicates accused 1 in the assault which took place in the open area.
[8] The post mortem report indicates that the cause of death was blunt force trauma of the abdomen. The cause of death indicated on the laboratory report however was pulmonary hemorrhage.
[9] At the end of the State’s case accused 2 and 3 applied to be discharged in terms of section 174 of the Act. The State opposed their application.
[10] Section 174 of the Act stipulates that: “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”.
[11] The guidelines to determine whether the court should discharge an accused in terms of s174 has been outlined in S v Nakale and Others 2006 (2) NR 455 (HC):. Muller J had the following to say at 465 B in respect of cases where the State relied on the doctrine of common purpose:
'Furthermore, if more than one accused is charged for committing the same offence and the State alleges common purpose, evidence which strongly implicates one accused, but to a lesser extent another accused, may be evidence on which a reasonable court may convict, if the basis of common purpose is laid by the State in its evidence. If prima facie a scheme or a scam can reasonably be inferred from the State's evidence, in which all, or more than one, of the accused may have played a part, however small, to achieve the result of committing the alleged offence(s) an accused that may appear less guilty at the close of the State case, may at the end of the trial also be convicted.'
[12] Although the state did not specifically indicate in the indictment that it would rely on the doctrine of common purpose, Mr Matota argued that the court should consider it given the fact that the evidence adduced places accused 2 and 4 in the company of accused 1and the deceased at material times as well as inside the open area. In S v GURIRAB AND OTHERS 2008 (1) NR 316 (SC) the court approved the dictum in S v Mgedezi and Others 1989 (1) SA 687 (A) at 705 - 706 that in cases where the State does not prove a prior agreement and where it was also not shown that the accused contributed causally to the wounding or death of the deceased, an accused can still be held liable on the basis of the decision in Safatsa if the following prerequisites are proved, namely: (a) The accused must have been present at the scene where the violence was being committed; (b) he must have been aware of the assault being perpetrated; (c) he must have intended to make common cause with those who were actually perpetrating the assault; (d) he must have manifested his sharing of a common purpose with the perpetrators of the assault by himself performing some act of association with the conduct of the others; (e) he must have had the requisite mens rea; so in respect of the killing of the deceased, he must have intended them to be killed, or he must have foreseen the possibility of their being killed and performed his own act of association with recklessness as to whether or not death was to ensue.
[13] The State witnesses who were present in the open area gave contradictory testimony on material aspects. Despite this fact the facts which emerges from their testimony was that: the deceased was assaulted by three police officers one of whom was not brought before the court; the deceased was not aggressive; the force used by the officers was excessive. These facts support the State’s allegation that an unlawful assault was perpetrated on the deceased which caused his death.
[14] The biggest contradiction was between the evidence of the persons detained in the open area and the officers who were on duty in the charge office in respect of the presences of accused 2 and 4. This court cannot however ignore the evidence of the officers on duty in the charge office at this stage of the proceedings. Their evidence places accused 2 and 4 in the open area at the material time when the deceased was being assaulted.
[15] Accused 2 and 4 were part of the officers who found the deceased after his attempted escape. The evidence was that that moderate force which was used to bring the deceased to the charge office as he was resisting. The State led evidence that the clothing of the deceased was dry when he was brought to the charge office for the first time and that his clothes were wet when he was brought back after his attempted escape. The extra curial statement of accused 1 which was handed into evidence explains why the deceased was dripping wet. I would however, at this stage of the proceedings, not rely on the statement of 1 or for that matter accused 3.
[16] The evidence adduced by the State, as stated before, places accused 2 and 4 inside the open area at the material time. They brought the deceased to the open area remained there for the duration of the assault, exited together and accused 2 made a remark to Sgt Tjiramba of what he had observed. This is prima facie evidence that both accused 2 and 4 saw what happened inside the open area.
[17] Once the deceased was safely placed in the cell (open area) the attack on him, according to the available evidence, was unlawful. The failure by police officers present to intervene may constitute an act of association.
[18] Under the circumstances it may be premature for this court to discharge the accused 2 and 4 and their application stands to be dismissed.
[19] In the result the following order is made:
The applications by accused 2 and 4 for discharge in terms of section 174 of the Criminal Procedure Act, 51 of 1977 are dismissed.
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MA Tommasi
Judge
APPEARANCES
The State : Office of the Prosecutor-General
Represented by Mr Matota.
ACCUSED 1: MR J VAN VUUREN
Kruger van Vuuren & Co.
ACCUSED 2 MS INONGE MAINGA
Inonge Mainga Attorneys
ACCUSED 3 MR J NCUBE
Instructed by: Government Attorneys
ACCUSED 4 MS F KISHI
Dr Weder, Kauta & Hoveka Inc.