1
REPUBLIC OF NAMIBIA
Reportable
HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK
JUDGMENT
Case No: CC 16/2011
In the matter between:
THE STATE
and
WENCEL GAWANAB ACCUSED
Neutral citation: S v Gawanab(CC16-2011)[2015]NAHCMD 232(25 September 2015)
CORAM:NDAUENDAPO J
Heard:27 March 2015
Delivered:25September 2015
Flynote:Murder – Private defence – Novusactus interveniens- accused aggressor – stabbed deceased nine times – No evidence to corroborate private defence – Novus actus interveniens – removal of drips by deceased – Not cause of death – Accused guilty as charged.
Summary:The accused was charged with murder. He raised private defenceand in the alternative the death of the deceased was caused by himself by removing drips inserted into his lungs to remove fluid.
Held further that evidence showed that accused was the aggressor when he stabbed the deceased nine times.
Held further that the fact that the deceased removed the drips had no causal link to his death. Accused guilty as charged.
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ORDER
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Accused is guilty of murder as charged.
JUDGMENT
NDAUENDAPO,J
[1]The accused ischarged with one count of murder. The allegations being that the accused ‘unlawfully and intentionally killed Quintus Lewellyn Reginald Geingob, a male person by stabbing him with a knife and/or other sharp object during the period 31 October 2010 to 1 November 2010 at Omaruru in the district of Omaruru as a result of which the said Quintus Lewellyn Reginald Geingob died on 6 November 2010 at Omaruru hospital.’
[2]The accused pleaded not guilty to the charge. In his plea explanation, he stated that he stabbed the deceased in private defence and/or that the deceased’s death was caused by novus actusinterveniens to wit, the deceased’s own removal of pipes (drip)which were inserted to drain fluid from his lungs.
[3]The accused was initially represented by MrScholtz, but withdrew half way the trial and then was represented by MrNambahu. The state was represented by MsHusselman.
Evidence
[4]DrChipamba, a medical officer, testified that on 1 November 2010 at Omaruru state hospital, he examined the deceased and compiled a J 88 (medical) report. He testified that on arrival of the deceased at the hospital he was stable. He had nine stab wounds and with the blade of the knife still lodged in his back. The blade was lodged so deep that he could not remove it on his own and had to be assisted by the driver to remove it. After the blade was removed he observed that the blade had penetrated the lung and that there was blood and air in the phiral cavity. Drainage of the air and blood from the phiral cavity by putting an underwater tube was administered.The tube was to drain the water and the air which if it had accumulated in the chest was going to disturb the breathing. He was also given antibiotics, pain killers and was to be monitored by the nursing staff.
[5]He further testified that two days after the tube was inserted, the nurse on duty noticed that the deceased had removed the underwater tube. He was called to go and see what had happened, he spoke to the deceased and then he put the underwater tube in place. He further testified that he continued monitoring the deceased and he was fine. On 6 November 2010 the deceased was fine, stable and without any critical complaint. Around 9 amthe same date he was called by the nurse who informed him that the deceased attempted to remove the tube again and by the time he arrived he found the deceased dead.
[6]DrKabanje testified that he conducted a postmortem examination on the body of the deceased and the cause of death was multiple stab wound injuries.
[7]Pauline Skinis testified that she was a nurse at Omaruru State Hospital. She met the deceased the day after he was admitted in the hospital. She described his condition as weak, feverish and that he was vomiting. Whilst she was in a ward a patient came to inform her that the deceased had removed the drip and the underwater drainage, she rushed to where he was. She observed that he was seated, the stomach was running and he had collapsed. They put him on the bed and gave him oxygen, but she noticed that there was no pulse, no blood pressure and he could not breathe.
[8]Antoinette Geingosthe mother of the deceased testified that on 31 October 2010 around 12h00 the accused came to her house looking for the deceased. The deceased was not there, he left and again returned carrying a golf stick in his hand and was very angry and aggressive. He shouted that he was looking for the deceased and he hit her table with the golf stick and damaged it. Later the deceased returned and again left, she was later informed that the deceased was stabbed with a knife.
[9]Iipinge David testified that on the night of the incident he was at the shebeen where the deceased was stabbed. He was inside the bar and heard people screaming outside. He went outside the bar, inside the verandah and saw the accused stabbing the deceased. The accused was holding the deceased on the collar of his shirt and pulling him. He saw the accused stabbing the deceased four times on the back whilst holding his collar. He could see that because there was light where the stabbing took place. The deceased was trying to get loose out of the grab of the accused as he was being stabbed. After the fourth stab, the blade of the knife, which he described as omukonda (homemade knife) got stuck in the body of the deceased and the accused remained with the handle in his hand. The deceased then ran around and fell down. He went to the place where the deceased fell, after a while the accused and his mother came and picked up the deceased and drove away.
[10]SamolienUises testified that they were at Hadago bar dancing and whilst there the accused came with two of his friends. They joined her group and also started dancing. After a while the deceased also arrived and went inside the bar. At some point she saw the deceased running into the open space, where they were dancing, being chased by the accused, who was holding him from behind on the collar of his shirt. She testified that the deceased was fleeing from the accused and that is when she observed the stabbing movements by the accused on the deceased. It was more than once, she said.
They ran around the pole and exited the bar again. She saw the deceased being stabbed by the accused up until the pole. The deceased fell on the ground some distance away from the bar from where he was collected by the mother of the accused and taken to hospital.
Defence’s case
[11]The accused testified that he and the deceased were friends. He testified that on 30 October 2010 on Saturday he was told by his mother that the deceased was at their house the previous night and caused a commotion, problems and even attempted to rape her. Around 18h00 he went to the house of the deceased’s mother to look for the deceased, but could not find him. He denied having damaged the table of the deceased’s mother with a golf stick. He testified that on Sunday, 31 October, he and Ruben went to Okalindi bar, Doeseb bar where they consumed alcohol. As they exited the bar they saw the deceased coming inside and he confronted the deceased about what transpired at his house the previous night (the incident the mother told him). The deceased then took out a knife and wanted to fight him, he held the deceased by his hands/wrist, the knife fell and he picked up the knife very quickly. The deceased then picked up a bottle and he then stabbed the accused, but cannot recall how many times. The deceased was the one who had the knife and who pulled it out in the attempt to stab him, he only overpowered him.
He further testified that witness Uises told lies to the court when she testified that she saw him holding the deceased at the collar of his shirt and stabbing him from the back.
[12]Ruben Gariseb testified that on that fateful night he met the accused at the shebeen where the stabbing took place. He however could not describe how the stabbing took place. He told the court that he saw the deceased slapping the accused and the accused taking out a knife. The accused then held the deceased by the arm and the knife fell. The deceased managed to loosen himself from the grab of the accused, picked up two bottles, smashed them and stormed at the accused. They wrestled and in the process the accused stabbed the deceased on his back.
Evaluation of the evidence
Private defence
[13]Did the accused act in private defence when he stabbed the deceased nine times? The accused and deceased were friends. On 31 October the accused went to the house of the deceased twice, but could not find the deceased there, after he was told by his mother that the accused broke into their home, caused a commotion and attempted to rape her the previous night, he was angry and aggressive when he arrived there and according to the mother of deceased, he hit her table with a golf stick to express his anger with the deceased. That evening he met with the accused at the bar where the fight took place. There is no evidence that the deceased was angry with the accused, to the contrary it was the accused who was angry with the deceased because he allegedly broke into their house and attempted to rape his mother. That anger was clearly demonstrated when he hit the table with the golf stick at the house of the deceased. Witnesses Daniel and Uises testified that they saw the accused holding the deceased on his collar of his shirt and stabbing him several times.
Uises testified that she saw the deceased fleeing into the open space being chased by the accused who was holding him from behind on the collar of his shirt and stabbing him. During cross examination, counsel for the accused put to her that she did not see any stabbing as it was dark, but she was adamant that she saw it, as there was sufficient illumination where the stabbing took place. That evidence is also corroborated by the objective evidence of the doctor who examined the deceased and saw nine stab wounds. Based on the evidence of the aforesaid witnesses it is clear that the accused was the aggressor and that he stabbed the deceased in retaliation for the trouble the deceased had allegedly caused at the accused’s house the previous night. He was the one who was angry with the deceased and who had reason to attack the deceased. Counsel for the state correctly argued that there was no enmity between the witnesses and the accused and accordingly none of them had any reason to falsely implicate the accused.
[14]The accused’s version is that the deceased took out a knife and wanted to fight him when he confronted him or asked him why he entered their house. He held the deceased by his hand, the knife fell and he picked up the knife very quickly, the deceased then picked up the bottle and he then stabbed the accused. He told the court that the deceased stabbed him with the bottle in the back and he overpowered him he denied having grabbed the deceased on the back of his collar and stabbing him as testified to by Uises and Daniel. Uises and Daniel never saw the deceased with the bottle and stabbing the accused, their evidence that the accused stabbed the deceased several times is corroborated by the doctor who observed that the deceased had nine stab wounds. The evidence of the accused is riddled with contradictions. During cross-examination the accused changed his version and testified that the deceased slapped him first, and that is why he overpowered the deceased, whereas in evidence in chief he never testified about the slapping at all and none of the witnesses saw that. He never went to the hospital for treatment for the alleged stabbing in the back as he was in prison and that shows that it never happened. None of the witnesses saw the deceased having bottle(s) in his hand(s) with which he allegedly stabbed the accused with.
Gariseb’s evidence was that the deceased had two broken bottles, one in each hand, whereas the accused testified that the deceased had one bottle in his hand. Having regard to the totality of the evidence, I come to the conclusion that the version that he acted in private defence cannot reasonably be possible be true and is clearly false and I reject it.
[15]Was there a novus actus interveniens?
The defenceargued in the alternative to private defence that the death of the deceased was caused by the removal of drips/pipes which were inserted in his lungs to drain fluid from his lungs. The expression novus actus interveniens means a new intervening event.
[16]In S v Grotjohn 1970 2 SA 355(A) the court held that a later event can be deemed to have broken the causal link only if it is completely independent act, having nothing to do with and bearing no relationship to X’s act. According to Snyman Criminal Law (6thed 87) a reasonable inference to be drawn from examples in our case law is that an event can be a novus actus interveniens only if it is an unsuspected, abnormal or unusual event, in other words one which, according to general human experience, deviates from the ordinary cause of events and cannot be regarded as a probable result of X’s act.
[17]Nurse Skinis testified that there was nothing sinister about deceased removing the drainage pipes as patient often do so when they become delirious or agitated.
When DrChipamba testified, the court asked him the following:
[18]Court:“Will this patient had survived had he not removed the tube?”
Answer: “I cannot confirm that he could have survived because there was another associated condition which is the multiple stab wounds which is considered to be like a high risk condition because it is the opportunity for bacteria to colonize the whole body but sometimes it takes time for the infection to spread and to be detectable. So I cannot say that if he removed he could have survived or not.”
Counsel for the defence also asked DrChipambaon that issue and the following exchanges took place:
[19]Question:“At this stage he did not have any infection until the time that the deceased actually passed away he was normal. He did not show any signs of infection or that his blood pressure or heart rate or anything showed any signs of an infection.”
Answer: “What I am saying is the infection takes some time for it to express itself and that patient was already put on antibiotic, yet he was put on antibiotics it does not exclude that the infection can still spread because in some cases you….. Even though you put the patient on antibiotics but later on at a later stage seven, eight days later the person develops sign of infection and dies. So it does not mean that if you put a person on antibiotics it confirms that he cannot easily have infection.”
[20]Question: “By that let us just for this argument forget infection because it did not surface at this stage. Would he have survived had he not removed the drainage pipes? Just forget about infection at this stage.”
Answer: “I cannot say yes or no because that patient from the date he removed the tube there has been a quite big volume of blood which we drained and at that stage the volume was not coming as well as on the first day.”
[21]Question:“The possibility is not excluded that he had gotten infections that may had led to his death?”
Answer: “Yes”
DrKabanje also testified that in his opinion the removal of the drainage pipe could not have caused the death of the deceased as there was very little fluid left in the lung cavity.
In the result this defence of novusinterveniens actus is also rejected.
I am satisfied that, having regard to the totality of the evidence, the state proved the guilt of the accused beyond reasonable doubt.
In the result the accused is found guilty of murder.
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G N NDAUENDAPO
Judge
APPEARANCES
FOR THE STATEMs Ingrid Husselmann
Office for the Prosecutor General
FOR ACCUSEDMr C Nambahu
Of Nambahu & Associates
Instructed by the Directorate of Legal aid