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NOT REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION

WINDHOEK

JUDGMENT

CASE NO: CC 43/2009

In the matter between:

SALMON VICTOR NAKALE …...................................................................APPELLANT

vs

THE STATE............................................................................................. RESPONDENT

Neutral citation: Nakale v State (CC 43/2009) [2013] NAHCMD 331 (13 November 2013)

Coram: SIBOLEKA J

Heard on: 21 October 2013

Delivered on: 13 November 2013

Flynote: Application for leave to appeal against the conviction on double murder and the sentence imposed thereon. Requirement – appellant must satisfy the courts that were leave to be granted there are reasonable prospects of success on appeal.

Summary: Appellant was convicted on two counts of murder (dolus directus) and given consecutive running sentences of 30 years on the first count where a domestic relationship existed and 20 years on the second count respectively.

Held: The evidence of the appellant during cross-examination was that he loaded, cocked the pistol and put the safety pin on the firing position then stuck the arm on his waist before he went to the scene of crime (the residence of the two women). The ballistic expert findings were that the deceased were separately killed by distance gun shots. The street bystanders testified they heard how Lucia shouted amid gunshots pleading with the appellant to stop shooting. The final conduct of the appellant exiting the scene with the fatally injured looking Lucia behind him who went down in desperate need of urgent medical attention – the appellant just looked at her, stuck the pistol on his waist, got into his car and drove away.

Held: The inferential evidence is solid such that I am not satisfied there are reasonable prospects of success in showing that the conviction and sentence were vitiated by the misdirection contended by the appellant’s counsel.

Held: The application for leave to appeal is accordingly dismissed.

ORDER

Application for leave to appeal is dismissed.

JUDGMENT

SIBOLEKA J

[1] This is an application for leave to appeal against conviction on the double murder (dolus directus) and the sentence of 30 years on the first count and 20 years on the second count.

[2] At the hearing of the appeal Mr Titus Ipumbu appeared for the appellant and Ms Verhoef on behalf of the Prosecutor-General. The court appreciates their valuable contribution in this regard.

[3] In his main heads of argument the applicant raised issues where the court in his view erred and misdirected itself regarding the conviction and sentence. The grounds are as follows:

“The Honourable Court misdirected itself in fact and/or law by:

3.1 Admitting evidence of Paul Links that he saw the appellant going into the yard of Rebecca’s shebeen (p.25 Judgment) while, in fact, during cross-examination, Paul Links testified that he did not know whether the Appellant came together with deceased Rebecca. (page 207, Line 18-21 of the Record).

3.2 Admitting or believing the evidence of State witness Michael Kooper who, in certain respects, during the trial had tendered perju rious testimony. (p. 106-107 of the Record).

3.3 Relying on the evidence of State witness Hans Gaoseb – which was changed persistently- that the latter saw deceased Rebecca hanging clothes on the fence before the arrival of the appellant.

3.4 Admitting uncorroborated evidence of Sheyavali Haimbodi to the effect that his wife Haimbondi developed hypertension (para 13.1 of the Judgment) without any medical proof which shows the etiology (cause) and the time period when the alleged ailment developed.

3.5 Admitting uncorroborated evidence that the Appellant injured deceased Rebecca and the latter was hospitalized (para 13.2 of Judgment).

3.6 Admitting uncorroborated evidence of Sheyavali Haimbodi that his wife casually related the accused’s threat about killing Rebecca to a police officer after the Church service, (para 13.2) of the Ruling.

3.7 Arriving at a conclusion, which is not supported by any scientific evidence, that “the bullet similarly penetrated and made a hole through the curtain and the corrugated iron zinc behind it. (para 15.3 of the Judgment).

4. The Honourable Court erred in finding that:

4.1 The Appellant washed his hands after that shooting while, in fact there was no evidence led to that effect (page 490 of the Record).

4.2 Holes A and B nice round were made by projections from inside to outside. (para 16.12 of the Judgment).

5. The Honourable Court erred in admitting contradicting evidence of the ballistic expert witness Mr. Nambahu that the entrance wounds (on Lucia Ndahambelela) did not have gunshot residue (para 16.7) while the same expert testified that the gunshot residue could not be analyzed because they do not have an electronic microscope.

6. The Honourable Court erred in admitting the expert opinion of Mr. Nambahu which reads:

“Although point ‘H2’ is at a high level that point ‘L’ where Rebecca is alleged to have been sitting it could be that she may have made a move when the shooting started making it possible for the bullet to exit her body and go through the corrugated iron zinc at point ‘H2’, while there is no parallel medical evidence to show”.

7. The Honourable Court admitted contradicting evidence whereby the Scene of Crime Officer Constable Goraseb testified and the Court summarized such testimony as follows:

“This officer stated that from his observations at the scene it looked like Rebecca tried to run out of her room after she was shot, and fell at the door: (para. 15.12 of the Ruling, while, Nambahu testified that:

“The moment Rebecca was struck for the very first time she could not have further engaged herself in a struggle with the accused for possession of the firearm, because that first bullet put her off.”

8. The Honourable Court erred in admitting the evidence of a ballistic expert that bullet 1 (which particulars) destroyed deceased Rebecca’s trachea and lodge at the right anterior triangle) was lethal, while, Dr. Kandenge (pathologist) conceded that a person who sustained that injury if he or she receives medical attention within an hour or two, he or she may survive, page 68, (line 6-9 of the Record).

9. The Honourable Court misdirected in admitting uncorroborated evidence of Aili Kaulinge (para. 17 of the Judgment) that deceased Rebecca was, at one stage, stabbed in the back, assaulted with a butt of the pistol and became swollen, was taken to the hospital, that all her history was written in her hospital passport and that a case was opened and later withdrawn.

10. The Honourable Court misdirected itself in fact in finding that:

10.1 When the Appellant testified that: “I believe it fell from the deceased, Rebecca’s hands and then she left the gun and the gun fell there”, the appellant pretends as if he himself never held the gun together with Rebecca. (para 18.7 of the Judgment).

10.2 The Appellant testified that both deceased Rebecca and Lucia Ndahambelela were struck by one bullet, contrary to the post mortem examination finding.

11. The Honourable Court misdirected itself in fact and/or law in placing much weight to the version of the Appellant during Section 119 proceedings in relation to the alleged number of shots and disallowing the evidence of the Appellant during the trial that he heard shots.

12. The Honourable Court misdirected itself in fact and/or law in disallowing uncontested evidence of the Appellant to the effect that deceased Lucia Ndahembelela uttered the following words: “your people have shot me”.

13. The Honourable Court misdirected itself in fact and/or law in finding that the Appellant said that deceased Rebecca pulled the trigger on herself and also shot Lucia.

14. The Honourable Court misdirected itself in fact and/or law in finding that the Appellant’s plea explanation on page 3 of the record, which reads:

“when the two, that is now the accused and the deceased (Rebecca) arrived at the house of the deceased (Rebecca) they found the other deceased.”

States that Rebecca and the Appellant entered the scene of the crime together.

15. The Honourable Court misdirected itself in fact by drawing an inference based on the usage of purportedly wrong words “turn or returned, turn” to find that the appellant picked up his gun twice at the same time.

16. The Honourable Court misdirected itself in fact and/or law in finding that the pistol’s ejection port was obstructed by the accused’s own hand. Therefore, the pistol could not perform its normal functions as a result, it was only able to shoot one bullet and a jam should have ensued.

17. The Honourable Court misdirected itself in fact and/or law by taking into account the fact that if the Appellant and deceased Rebecca were struggling for possession of a gun and same fired shots, the latter, undoubtedly, inflicts distant gunshot wounds.

18. The Honourable Court admitted unsubstantiated evidence by the ballistic expert that if the accused covered the ejection port when the shot went off, he was supposed to get injured on the palm of his hand, (para 18.32 of the Judgment).

19. The Honourable Court misdirected itself in law and/or fact by admitting the evidence of the ballistic expert in relation to the shooting, which is plain conjucture while, such ballistic expert testified candidly that the angles are very difficult to interpret and he cannot explain what happened. (page 361 of the Record).

20. The Honourable Court misdirected itself in fact and/or law by admitting unsubstantiated evidence of the ballistic expert that if the deceased Rebecca’s hand in which (sic) she held the pistol was twisted during the alleged struggle so that the muzzle faced her body and she pulled the trigger, then close or contact entrance wounds would have been inflicted on her instead of distant entrance wounds she has sustained.

21. The Honourable Court disallowed uncontested evidence tendered by the appellant that deceased Rebecca visited him (appellant) twice; to wit: at 08h00 a.m and between 16h00 and 17h00.

22. The Honourable Court misdirected itself in law by making a conclusion that the accused’s assertions that the shots that fatally injured the two deceased persons went off by accident is not supported by the evidence placed before this Court (para. 25 of the Judgment). This conclusion, unfortunately, is inclined to shift the burden of proof to the accused.

23. The Honourable Court respectfully relied on ‘circumstantial evidence’ while, indeed, the facts from which the Court drew inferences do not amount to or qualify as circumstantial evidence.

AD THE SENTENCE

24. The Honourable Court erred in over-emphasizing the seriousness of the offence and the deterrent effect of the sentence, and, in doing so, the Court ignored the following mitigating circumstances of the appellant, that:

23.1 the appellant is a first offender.

23.2 the appellant is a father of six (6) minor children and the latter depended heavily on him before his incarceration.

25. The Honourable Court failed to take into account that or take into account adequately that the appellant had shown grave remorse during and after the trial.

26. The Honourable Court failed to take into account or take into account adequately that the appellant was ordered by Oukwanyama Traditional Authority to pay twenty four (24) head of cattle as compensation for the death of the deceased Rebecca and Lucia. Until to-date, only nine head of cattle is outstanding.

27. The sentence in respect of Count 1 and 2 is shockingly severe and no reasonable Court would have imposed it.”

[4] The incident took place in an indoor setting where there were no direct witnesses regarding what happened apart from the appellant himself, the ballistic expert, two street bystanders and others. The ballistic expert’s evidence was that the deceased were each killed by distance gun shots.

[5] The applicant testified during cross-examination that he came to the scene with a loaded pistol whose safety pin was on the firing position. The street bystanders saw him stopping at the residence of the two deceased, alighting from his car alone, and walking inside the zinc shack. Shortly thereafter gunshots went off, Lucia was heard shouting, pleading with the applicant to stop.

[6] Immediately after the gunshots the street bystanders saw the applicant exiting the zinc house (scene of crime) followed by the fatally injured looking Lucia who went on her knees in an obvious desperate need of urgent medical attention. The applicant was able to rush her to hospital if he so wished but just looked at her, stuck the pistol back on his waist, walked to his car, got in, and drove away.

[7] None material contradictions in witness’ evidence were there but these did not affect the consistency of the body of overwhelming evidence inferentially reasoned, pointing at the appellant as the person who shot and killed the two deceased ladies.

[8] The court was convinced beyond reasonable doubt by way of inferential reasoning that it was the appellant who shot and killed the two deceased ladies. All the elements of the crime of murder had been proved beyond reasonable doubt.

[9] The applicant gave various conflicting versions regarding what happened and among these were that a struggle for possession of the pistol ensued between him and Rebecca resulting in the shots that went off. This version was found to be untrue. He demonstrated during the trial in court how he held the chamber with his hand completely covering the exit port. This was convincingly displaced by the ballistic expert who testified that such a hold on the chamber would have resulted in a jam. In other words, no further shots would have went off because the spent cartridge’s exit was blocked. According to the expert as long as a blockage was in place no fresh cartridge would come in the chamber for another shot to be fired.

[10] The court duly considered the above evidence and concluded that it was impossible that such a story could be true and therefore rejected it as false beyond reasonable doubt.

[11] In respect of sentence it was contended that the court failed to take into account that the applicant showed ‘grave remorse during and after the trial’. Further that the same failure goes to the not taking into account the twenty four (24) head of cattle paid by the applicant as compensation on the orders of the Ounkwanyama Traditional Authority for the death of the two ladies. This is far from being the case.

[12] The above contention is not correct, because after due consideration was given to the mitigating and aggravating circumstances, the applicants personal circumstances, the gravity of the offences, the interests of society, the court concluded that the other factors outweighed the interests of the applicant and proceeded to impose the sentence of thirty and twenty years respectively.

[13] In an application of this nature the mere possibility of another court arriving at a different conclusion or to say the case could be fairly argued is not enough. See S v Sikosana 1980 (4) SA 559 AD at 562 D-E; S v Ceaser 1977 (2) SA 348 (A) at 350 F-G.

[14] After having carefully considered all the grounds upon which the court’s findings were challenged, I have come to the conclusion that the appeal has no reasonable prospects of success, and is therefore accordingly dismissed.

A M SIBOLEKA

Judge

APPEARANCES

APPELLANT:....Mr T Ipumbu

…......................................................................................Directorate of Legal Aid

RESPONDENT:.....Ms A Verhoef

…................................................Office of the Prosecutor-General, Windhoek

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