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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

Case No: CC 17/2008

ROMEO MANELITTO SCHIEFER APPLICANT

versus

THE STATE RESPONDENT

Neutral citation: Schiefer v State(CC 17/2008) [2014]NAHCMD269(16September 2014)

Coram:SHIVUTE, J

Heard:14 April 2014

Delivered:16 September 2014

Fly note:Leave to appeal – The mere possibility that another court might come to a different conclusion is not in itself sufficient to justify the grant of the application – The applicant must satisfy the court that he has a reasonable prospects of success – Applicant failed to satisfy the court to that effect – Leave to appeal refused.

ORDER

The application for leave to appeal is refused.

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

SHIVUTE J:

[1]The applicant was convicted in this court of two counts of murder with direct intent read with the provisions of the Combating of Domestic Violence Act 4 of 2004 and one count of theft. He was sentenced to 28 years’ imprisonment on each count of murder of which 8 years’ imprisonment on the second count was ordered to run concurrently with the sentence on the first count. He was warned and cautioned in respect of the third count. Effectively the applicant has to serve 48 years’ imprisonment.

[2]The applicant is applying for leave to appeal against both conviction and sentence. He is represented by Mr Christians who appeared on his behalf during his trial and Mr Kumalo appeared on behalf of the Respondent.

[3]The applicant’s grounds of appeal are as follows:

A. Ad Conviction:

“1.That the learned judge erred and or misdirected herself by finding that the state has proven its case beyond reasonable doubt while there still exist doubts with regard to these aspects of which Appellant should have been given the benefit of.

2.That the learned judge erred and or misdirected herself by finding that the only inferences to be drawn from the circumstantial evidence point to the guilt of the Appellant and that no other inferences could be drawn from these facts, as contemplated in R v Blom 1939 AD 188.

3.That the learned judge erred and or misdirected herself by finding that the female DNA discovered on clothes warn by Appellant was that of female 1, while the forensic evidence indicate that DNA as that of an unknown female human being.

4.That the learned judge erred and or misdirected herself by accepting the evidence of Jo-Ann Dickson as credible while she could not clearly stipulate how she could recognise the voice of Appellant from three short words she heard that evening.

5.That the learned judge erred and or misdirected herself by accepting the confession made by Appellant while inter alia there are so many contradictions in the evidence of Chief Inspector Unandapp, Chief InsepctorViljoen testified that he did not explain Appellant’s rights to him but only informed him what is stated in the pro-forma as well as ignoring the many inconsistencies in the confession given by Appellant.

6.That the learned judge erred and or misdirected herself by convicting Appellant on a charge of theft in the absence of evidence that proves the common law elements and requirements of the offence.”

B. Ad Sentence:

“That the learned Judge erred and/or misdirected herself by;

  1. imposing a sentence of 48 (forty eight) years direct imprisonment on a juvenile who was 18 years old at the time of the commission of the offences which sentence is startlingly inappropriate and induces a sense of shock.
  1. overemphasising the interest of society and ignoring the important personal circumstances of Appellant by only paying lip service to these factors and not reflecting these in the sentence.
  1. overemphasising the circumstances of the murders and totally disregarding the evidence given by the sister and brother as well as son of the two deceased persons with regard to the murders.
  1. overemphasising the retributive and preventative elements in the absence of direct evidence that it should form the main focus of the sentence instead of accepting the reformative and rehabilitative aspect as the main guideline for this youthful Appellant.
  1. finding that Appellant showed no remorse while there is in fact no evidence to support such finding but rather evidence and submissions from the bench that Appellant is indeed extremely remorseful and loved his parents very much and were very close to them as the baby of the family.

Where after Appellant humbly prays that the convictions as well as the sentence be set aside.”

[4]Counsel for the applicant submitted that there existed a reasonable possibility that another court might come to a different conclusion as to whether the State had proved the conviction on all counts. He stated the position of the law regarding the application for leave to appeal that the applicant should merely satisfy the court that he has reasonable prospects of success on appeal. In support of his arguments he relied on the matter of R v Ngubane1945 AD 185. He further quoted several other authorities with regard to leave to appeal.

[5]With regard to sentence counsel argued that the sentence imposed on a youthful offender at the time the offences were committed and who is also a first offender induces a sense of shock. Therefore the court should only consider the possibility that another court might, not shall come to a different conclusion.

[6]Counsel for the applicant made several other submissions namely:

Although circumstantial evidence is not necessarily weaker than direct evidence the question remains whether the inferences to be drawn from this evidence under the circumstances are the only reasonable inferences, which exclude any other reasonable inferences. It is his submission that the circumstantial evidence in this case is not supported by the DNA evidence. Although Doctor Hildebrand’s testimony refers to female 1 this DNA was never identified. It is further counsel’s argument that samples that where referred to by the witness were received by them at the laboratory and marked K1 and K2. However, sample K2 was never identified or compared as it did not yield sufficient DNA for analysis and comparison purpose. With regard to other grounds of appeal as far as conviction is concerned he referred to his submissions before conviction dated 26 April 2013.

[7]On the other hand, counsel for the respondent argued that the applicant does not have any reasonable prospects of success on appeal as the applicant was properly convicted. For the applicant to succeed with this application he must satisfy the court that he has reasonable prospects of succeeding on appeal. He supported his arguments by relying on the matter of S v Nowaseb 2007 (2) NR 640 where Parker J stated:

“Thus, an application for leave to appeal should not be granted if it appears to the judge that there is no reasonable prospects of success .... But it must be remembered, the mere possibility that another court might come to a different conclusion is not sufficient to justify the grant of leave to appeal.”

(S v Ceasar1977 (2) SA 348 A at 350 E).

[8]Concerning the sentence, counsel for the respondent argued that the sentence imposed on the applicant was proper and just in the circumstances and that the applicant has no prospects of success against the sentence imposed.

[9]Counsel for the respondent is in agreement with the decision of the court argued that the guilt of the applicant was proved beyond a reasonable doubt when the state adduced circumstantial evidence, DNA evidence and the confession. Counsel for the Respondent correctly argued that counsel for the applicant by contending that the court misdirected itself by finding that female DNA discovered on the clothes that were worn by the applicant was that of female 1 is misplaced as Doctor Hildebrand’s testimony is that:

“Blood was identified on exhibits Q1, Q4, Q6 and Q7. Exhibits Q2 and Q5 were not tested for the presence of blood. Exhibits Q1, Q2, Q3 and Q4 and sections of clothing yielded sufficient human DNA to proceed with STR analysis and each yielded the same female profile. This profile was designated as female 1 ...”

See page 188 lines 21 – 26. There is evidence that Q1 and Q2 were from the short trousers. Q3 was from the T-shirt and Q4 was from the socks. The applicant admitted that he was wearing those items on the night of the incident.

[10]Concerning the evidence of Jo-Ann Dixon counsel argued that the witness was residing at the flat at the residence of the applicant and his deceased parents for six months prior to the incident. She could hear the applicant talking to his mother and the witness had engaged in conversation with the applicant on an average of twice a week. Even prior to her staying at the applicant’s residence she would speak to him as she used to buy meat from him. Therefore, witness was aware and was familiar with the applicant’s voice. It was counsel’s further argument that the court was justified to find the witness as a credible witness because the court was in a better position to determine the credibility of the witness as it observed the demeanour of the witness.

[11]Regarding the evidence of Chief Inspector Unandapo and Chief Inspector Viljoen, counsel for the respondent argued that there was no contradictions between their testimonies as they had their different roles to play at different times. Therefore, there was no basis for the court to reject their testimonies and the confession. Counsel cited authorities in support of his arguments.

[12]Concerning the theft charge counsel argued that there is evidence on record that the applicant admitted that he stole the ATM card therefore, counsel argued that this ground is of no merit.

[13]With regard to the sentence imposed counsel argued that the court considered all the pertinent factors and exercised its discretion judiciously. He further argued that although it is correct that the courts are enjoined to treat juvenile offenders with a measure of leniency it does not follow that the courts must spare youthful offenders from imprisonment in deserving cases like this one. The applicant was convicted of two counts of murder the manner in which they were committed exhibited extreme brutality and viciousness. The above counts committed involve domestic violence.

[14]It was counsel for the respondent’s argument that the court did not misdirect itself by saying that the applicant did not show any remorse because the applicant did not go to the witness stand and testify in mitigation and express that he was remorseful. The court was thus not able to assess any remorse being exhibited by the applicant. Counsel cited authorities in support of his arguments and prayed for the court to refuse the application.

[15]I will now deal with the arguments made by counsel for the applicant in respect of conviction first and later on with regard to sentence briefly because many of the issues raised in the submissions and the contentions made were dealt with in my judgment on conviction as well as my judgment on sentencing and it is not necessary to repeat them.

[16]With regard to the contention that the court misdirected itself by finding that the State has proved its case beyond a reasonable doubt and the inference to be drawn from circumstantial evidence that no other inferences could be drawn other than the inferences pointing at the applicant’s guilt, I have already mentioned in my main judgment, that the state rests its case on circumstantial evidence, evidence of the confession and forensic evidence. In assessing circumstantial evidence, it has been said that the court should not approach the evidence on a piecemeal basis so as to subject each individual piece of evidence to the consideration of whether it excludes the reasonable possibility that the explanation given by an accused is true. What is required is to consider the evidence in its totality from which the court would then be able to draw certain inferences if (a) the inference sought to be drawn is consistent with the proven facts and (b) the proven facts are such that they exclude every reasonable inference from save the one sought to be drawn. R v Blom 1939 AD at 202-3. I have considered the evidence in its totality and in line with the above mentioned principle I arrived at the conclusion that the proven facts are such that they exclude every reasonable inference from them save the one sought to be drawn.

[17]Concerning the evidence of Jo-Ann Dixon, as I have already alluded in my judgment that she is a credible witness who was familiar with the applicant and his mother’s voice as she had stayed at their residence renting the outside room for about six months. The reasons for accepting Jo-Ann Dixon’s version as opposed to that of the applicant are stated in my judgment at pages 30-31.

[18]Counsel for the applicant criticized the evidence of Chief Inspector Unandapo and Chief Inspector Viljoen that there has been inconsistence and the acceptance of the confession. The testimony of Chief Inspectors Unandapo and Viljoen did not contradict each other as they played their roles at different times apart from each other. However, Inspector Unandapo was criticized for inter alia his alleged failure to inform the applicant’s rights to legal representation at the time of his arrest as well as during the event that led to the applicant making a confession. He was also accused of having coached the applicant into what he should say in the confession. Regarding the allegation of coaching, it is highly improbable that Unandapocould have told the applicant what to say in the confession, because some of the details in the confession were personal to the accused. This court still maintains its position that before the applicant gave his confession to Chief Inspector Viljoen, Chief Inspector Viljoen explained his legal rights to him and the confession was correctly ruled to be admissible.

[19]Contrary to what counsel for the applicant said that the circumstantial evidence is not supported by forensic or DNA evidence, the opposite is true. Evidence was led in court that Q1 and Q2 were from the short trousers. Q3 was from the T-shirt and Q4 was from the socks. The applicant had admitted that he was wearing those items on the night of the incident. See also the testimony of Doctor Hildebrand at page 188 lines 21-26 of the record and the argument of counsel for therespondent regarding this issue at page 5 paragraph 9 of this judgment.

[20]Circumstantial evidence, forensic or DNA evidence and the confession made by the accused cumulatively considered proved the case for the state against the accused beyond a reasonable doubt. The applicant was therefore correctly convicted for the murder of his parents. With regard to the third count of theft there is overwhelming evidence that the applicant took his mother’s ATM Card without her consent. It was found in his possession after he killed her. An indication that he wanted to deprive her of the card permanently. The applicantin his testimony admitted that he indeed stole his mother’s ATM Card.

[21]With regard to sentence the court has considered the interest of the applicant, the seriousness of the offences committed and the interests of society. I have weighed the three interests as stated above to achieve a delicate balance that must be struck. The accused committed serious and heinous crimes of murder. He attacked the deceased persons viciously and mercilessly and killed them in a cold- blood execution style. The applicant did not show any remorse. As counsel for the respondent correctly argued relying on the matter of S v Ganes 2005 NR 472 (HC) which refers to the matter of Seegers1970 (2) SA 506 (A) at 511 G where it was said:

“Remorse as an indication that the offence will not be committed again is obviously an important consideration, in suitable cases, when the deterrent effect of a sentence on the accused is adjudged. But in order to be a valid consideration, the penitence must be sincere and the accused must take the court fully into his confidence. Unless that happens the genuineness of contrition alleged, to exist cannot be determined.”

The applicant did not testify in mitigation and thus did not take the Court fully into his confidence.

[22]The Court has considered all the personal circumstances of the applicant including youthfulness tried to harmonise and balance them and applied them to the facts.

S v Van Wyk 1993 NR 426 (SC)

“The duty to harmonise and balance does not imply that equal weight or value must be given to the different factors. Situations can arise where it is necessary (indeed it is often unavoidable) to emphasize one at the expense of the other.”

[23]The Court did not overemphasize certain factors at the expense of the others. The sentence imposed does not induce a sense of shock. After careful consideration of all the factors the court exercised its discretion properly and judiciously and arrived at the sentence imposed as it appears to be proper and fair in the circumstances.