S V Hange (CC 12-2012) 2015 NAHCMD 83 (10 April 2015)

2

REPUBLIC OF NAMIBIA

NOT REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CC 12/2012

In the matter between:

THE STATE

and

RICHARD HANGE ACCUSED

Neutral citation: S v Hange (CC 12-2012) [2015] NAHCMD 83 (10 April 2015)

Coram: LIEBENBERG J

Heard: 18 – 20; 23 – 24; 26 and 30 March; 09 April 2015

Delivered: 10 April 2015

Flynote: Trial – Murder – Accused and deceased in a domestic relationship – State case entirely based on circumstantial evidence – Court faced with conflict of facts between State witnesses and accused – Approach by court discussed and principles applied – Accused’s testimony found untruthful – Accused not per se guilty – Accused’s untruthfulness a factor when considering all the evidence – Circumstantial evidence not to be considered in isolation – Cumulative effect thereof will be decisive.

Summary: The accused pleaded not guilty to a charge of murder and claimed to have acted in private defence when he pushed the deceased away from him after she had cut his throat with a knife. He then lost consciousness and thus unable to explain the injuries on the deceased’s body. From the post-mortem examination report it is evident that the deceased sustained two cut wounds to the neck of which one was fatal, and two fractures of the skull and abrasions on the neck, consistent with fingernail marks. Accused disputed having inflicted any of the injuries. The accused and the deceased were alone in the bedroom when cries for help were heard coming from the deceased’s residence. The door of the bedroom was found locked from the inside and several witnesses testified that when the accused later stepped outside, he was not injured. He was later seen cutting his own throat. The untruthfulness of the accused’s testimony is directly connected to his defence. His untruthfulness not per se making him guilty but is a factor to be taken into account when assessing all the evidence. Where the court is faced with conflicting facts from the State witnesses and the accused, the probabilities might be decisive. Accused gave conflicting instructions to counsel which remained unexplained and impacts on his credibility as a witness. Though the State case entirely rests on circumstantial evidence the court found the accused’s evidence to be false beyond reasonable doubt.

ORDER

The accused is found guilty of the crime of murder, read with the provisions of the Combating of Domestic Violence Act, Act 4 of 2003.

JUDGMENT

______

LIEBENBERG J:

[1] The accused, an adult male, is indicted on a charge of murder, read with the provisions of the Combating of Domestic Violence Act, Act 4 of 2003, in that he on 27 September 2011, in the district of Windhoek, unlawfully and intentionally killed the deceased, an adult female.

[2] The accused was legally represented by Mr Ujaha, while Mr Eixab appeared for the State.

[3] After having pleaded not guilty to the charge the accused chose not to disclose the basis of his defence. It emerged during the trial that his defence was one of private defence and/or that the injuries to the deceased’s body were self-inflicted. The State, during the trial, led the evidence of several witnesses of which none were eyewitnesses as to the manner in which the deceased was fatally wounded in her mother’s home. The evidence of these witnesses mainly relate to circumstances prior and subsequent to the incident during which the deceased was killed.

[4] Precilla Kandovazu is the biological mother of the deceased who had been at work during the fateful incident. Her evidence mainly relate to an incident between the accused and the deceased at her house the previous day when she found the deceased crying in the kitchen where after the accused left. Nothing further turns on her evidence. The accused disputes the incident of the 26th of September 2011 as testified about by Precilla.

[5] Emely Kambaraa is the neighbour to Precilla, while Emel Kandovazu, aged 23 years, is her son who, together with his siblings, resided with their mother. The evidence of these two witnesses essentially describes the same incident.

[6] According to Emely she saw the accused in the morning coming from Pricilla’s house carrying a green bag which he left outside before re-entering the house. The younger brother of the deceased (aged 7) came asking on behalf of the deceased for her cellphone and shortly after he had left, she heard a loud slamming noise and the screams of the deceased coming from the house. She disputed in cross-examination that it had been the accused’s screams she had heard. She ran to Priscilla’s house and found the boy standing in the kitchen, still having her phone; he told her that the accused was inside the house. She passed through the kitchen and came to the bedroom door which was closed. She first called out the accused’s name, and thereafter that of deceased, but without any response. All she heard coming from the deceased’s bedroom were groaning or gurgling sounds and when she peeped inside through a hole in the wall panel, she could partly see the deceased’s body with the accused stooped over her. She tried the door but it was locked where after she went up to the kitchen door from where she cried out for help. Emel arrived and after she had informed him of what was going on, they tried from the kitchen’s side to break through the wall panel into the deceased’s bedroom, but without success. Emel then left and returned with an axe and tried to break down the door but still could not manage to gain access into the bedroom.

[7] Emel’s testimony is that he sat in the sitting room when the accused arrived enquiring about the deceased. I pause to observe that there is one room comprising of the kitchen and living room (open plan) plus two bedrooms. The deceased was sitting on the bed inside her bedroom while the accused sat himself down on the step of the doorway where after they spoke but kept their voices down. Emel decided to visit a friend and as he was about to leave, he heard the deceased angrily telling the accused that she ‘no longer wanted him’ and that he must leave. She had told him several times to leave. According to Emel the couple had no longer been in a relationship at the time. He then left the house and whilst on his way to a friend, about 5 minutes later, Immanuel Goa-Aib called out to him saying he must return home. Upon entering the kitchen he also heard the groaning or gurgling sounds coming from the deceased’s bedroom. He confirmed having found Emely inside the house talking to the accused by telling him to come out. Emel said that when he entered the house he had taken with him an axe which he used in trying to break down the door. He was unable to tell whether or not he and Emely first used their hands before he tried to break the chain with the axe. His evidence on this point differs from that of Emily who said they both tried to break through the wall panel, whilst he denied having done so; also that others like Yster, Robinson and his brother, assisted Emely whilst she made no mention of their presence.

[8] Explaining the run of events that followed thereafter, Emely and Emel corroborate each other in material respects. Both said the accused had told them to move away from the door where after they went to stand outside. He thereafter appeared in the kitchen door asking them what they wanted. They described his appearance as being wide-eyed and foaming at the mouth. Contrary thereto the accused disputes having come out of the house. Both witnesses are adamant that he, at that stage, had no visible injuries. Emel then charged at the accused with the axe in hand and according to Emely they took the axe away from him before he re-entered the house, following the accused inside. The accused had again entered the bedroom and closed the door behind him. According to Emel the accused pushed the TV wall-unit across the doorway, blocking the entrance. The accused later opened the door and as he came out of the bedroom, he stabbed himself in the neck with a knife. When he moved closer Emel ran outside. Emely confirmed that Emel came out running and she saw the accused holding a knife in his hand while bleeding from his throat. He went to stand in the doorway of the kitchen and twice cut his throat from side to side. He was thereafter unable to speak and gestured to those outside to summon the police where after he moved back into the house and fell down in the kitchen. Emel entered the bedroom and saw the TV wall-unit lying on top of the deceased; he removed it and observed blood and several stab wounds on the deceased’s body and realised that she was dead. Emely came up to the door of the bedroom and touched the feet of the deceased. It was cold from which she concluded that she was no longer alive. She went outside and informed those standing outside while Emel went to sit with the deceased, crying until the police arrived.

[9] Not part of Emely’s evidence, is Emel’s testimony about a screwdriver which was later found inside the house and which he had buried in a riverbed. When he later on received message from the police to bring them the screwdriver, he dug it up and took it to the police. When asked why he had done this, he was unable to explain his actions. His witness statement to the police in respect of the screwdriver also differs from his testimony as far as it concerns its disposal in the riverbed, and in whose company he was at the time. This notwithstanding, the screwdriver was eventually handed over to the police.

[10] In cross-examination it was put to Emel that the accused never left the bedroom after the deceased had locked him in and that it was only after breaking down the door that Emel found the accused with his throat (already) cut. He disputed counsel’s contention that it was the deceased who had inflicted the injuries to the accused’s neck and persisted that he had injured himself.

[11] State witnesses Immanuel Goa-Aib and Cecilie Katjito also observed the incident when the accused cut his throat. Immanuel had seen Emel trying to open the kitchen (main) door using an axe, but in view of the evidence adduced by the other witnesses, he is clearly mistaken on this point. Another notable difference is that his statement made to the police reads that Emel was together with him and others busy erecting a structure. However in cross-examination he said that it must have been a mistake made by the person who recorded the statement as Emel was merely passing them in the street when he informed him that he must return home.

[12] Cecilie was attracted by the commotion at Priscilla’s house and when she reached the house she saw the accused coming from the house. This was after Emel and Emely had already left the house. Unlike Emely and Emel, Cecilie did not give evidence about the accused’s appearance; only that he stood in the doorway before stepping back inside. She then told Emel that they should go inside to see where his sister was where after Emel entered and she remained at the kitchen door. Her evidence corroborates that of Emel that the accused came from the bedroom with a knife in his hand whereupon Emel ran outside. She remained standing and looked at the accused when he stabbed himself in the throat with the knife. He had moved up to the kitchen door where he continued cutting himself in the throat. When he turned back and fell down inside the house she again told Emel to enter the house but when he started screaming and crying, she went outside.

[13] The evidence of Immanuel pertaining to the stabbing incident is on par with that of the other witnesses as far as it relates to Emel coming from the house saying that ‘This man has stabbed himself’. He also observed how the accused continued cutting his throat and how he tried to speak but could not manage. After the accused moved back inside, he (Immanuel) went up to the door and saw the accused lying on the floor. His evidence does not take the matter any further.

[14] The evidence of Sergeant Basson concerns the finding of a blood stained knife in the kitchen area which was handed in as Exhibit ‘1’. He was the first police officer at the scene and upon entering the house he saw the knife on the floor next to the bedroom door of the deceased. He subsequently pointed out the knife to the Scene of Crime members and identified it in court as the same knife he had earlier seen inside the house. The bedroom was in disarray and furniture had been out of position. The body of a female person was lying on its back and had wounds to the face and neck.

[15] Sergeant Moses Ochurub is the former investigating officer who attended to the scene on the day of the incident and his observations of the scene are similar to that made by Sergeant Basson. He seized the knife and booked it in as an exhibit which, together with the screwdriver, he subsequently handed over to one Constable Nghoomoka who delivered it to the National Forensic Institute for forensic analysis. His evidence further related to a travel bag he had found next to the house as depicted on photo 1, which he seized and later handed over to relatives of the accused at their insistence. I pause to observe that the presence of the bag, or him having handled same as testified by Emely, was vehemently disputed during cross-examination. I will return to this aspect of the evidence later.

[16] A report prepared by two forensic scientists from the National Forensic Science Institute of Namibia was handed into evidence by agreement and the findings contained therein are, that both the knife and screwdriver tested positive for human blood. Whereas the origin of the blood found on the items was not determined, nothing of importance for purposes of the trial turns on the forensic report. Defence counsel’s criticism in respect of poor investigation is not without merit because, in this case, there was no doubt that the blood observed on the knife was that of a human being; the question is, whose blood was on the knife?