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REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CC 15/2015

NOT REPORTABLE

In the matter between:

THE STATE

And

JESAYA NIKANOR...............................................................................................................ACCUSED

Neutral citation: S v Nikanor (CC 15-2015) [2016] NAHCMD 222 (25 July 2016)

Coram: LIEBENBERG J

Heard: 05 – 08; 11 – 14 July 2016

Delivered: 25 July 2016

Flynote: Criminal law – Murder and Rape – DNA profiling – Expert evidence – Reliability of opinion by expert discussed – DNA profile of accused found on samples taken from deceased’s genitalia and finger swab – DNA evidence links accused to both crimes.

Criminal law – Reports by accused about rape and murder of deceased prior to discovery – Self-incriminating reports link accused to offences – Reports consistent with DNA evidence implicating accused.

Criminal law – Housebreaking with intent to Rape and Rape (c/s 2(1)(a) of Act 8 of 2000) – Proved facts not establishing any ‘break in’ – No sign of forceful entry – Windows afterwards found ajar not per se proof of entry – Not the only reasonable inference to draw from facts – Housebreaking with intent to rape not proved – Offence of rape duly established – Accused convicted of rape.

Criminal law – Defeating or obstructing the course of justice – Accused asked to hand to police trousers worn on specific date – Accused handed over other trousers before handing the pair in question – Accused disputing allegations – Accused’s intentions to be inferred – Possibility not excluded that accused unintentionally identified wrong trousers.

Summary: Accused indicted on charges of murder, housebreaking with intent to rape and rape in contravention of s 2(1)(a) of Act 8 of 2000, and defeating or obstructing the course of justice or attempting to do so. He pleaded not guilty on all counts. It is common cause that accused and the deceased stayed at the same camp where they were employed. Prior to the death of the deceased being discovered, the accused had made reports about the deceased having been raped and killed to two persons who had had no contact with one another. Swabs taken from the accused and the deceased’s genitalia and left hand generated DNA profiles which link the accused with the rape and murder. In addition, blood spatter found on the accused’s shorts proved to that of the deceased. Having considered the expert evidence of the forensic analyst the court was satisfied that the reasons for expressing the opinion was sound and the opinion reliable. The scientific evidence directly connects the accused to the commission of both murder and rape. Though several windows of the deceased’s home were afterwards found open, there was no proof of any forceful entry. The court not able to infer from the proved facts that there was a break in. On the charge of defeating or obstructing the course of justice the State alleged that the accused intentionally tried to mislead the police when asked to hand over the pair of trousers he wore on a specific day. Again the court is required to determine the accused’s intentions by way of inferential reasoning. Court not convinced that possibility of accused having acted unintentionally when handing the police trousers other than what they were looking for, can be excluded. Hence, criminal intent not proved beyond reasonable doubt.

ORDER

Count 1 – Murder: Guilty.

Count 2 – Housebreaking with intent to Rape: Not guilty.

Rape, in contravention of s 2(1)(a) of the Combating of Rape Act 8 of 2000: Guilty

Count 3 – Defeating or obstructing, or attempting to defeat or obstruct the course of justice: Not guilty.

JUDGMENT

LIEBENBERG J:

[1] The accused, a 40 year old male, was indicted on charges of murder, housebreaking with intent to rape and rape[1] and defeating or obstructing or attempting to defeat or obstruct the course of justice. He pleaded not guilty on all counts and put the State to prove the allegations set out in the indictment.

Accused’s plea explanation

[2] Accused admitted in the plea explanation that he was employed by Etosha Safari Camp from 01 – 26 September 2008 as technician and tasked to install air conditioners on site. He admits that between 18 – 19 September 2008, and together with Marshall Horaeb, they installed an air conditioner at the deceased’s residence which they completed on 19 September 2008. He however disputes having returned to the deceased’s home during the period 20 – 27 September 2008, thus denying the allegations contained in the counts preferred against him.

The police investigation

[3] Fiona Holton (deceased), aged 52 years, was killed a few days after she had moved to Etosha Safari Camp to take up the position as manager. The last time seen alive was on the evening of Saturday, 20 September 2008, when she and some colleagues had dinner together. Before they parted ways it was agreed that the deceased had to report on duty only later the following day (Sunday) as she had a lot of unpacking to do. When she had not turned up by 5 pm on Sunday, the former manager, Juanita Holmes, her husband Brian and the Operations Manager, Alain Noirefarlise, walked over to the deceased’s residence to check on her. Upon their arrival they found the door to the deceased’s house locked, with the key still in the lock on the outside of the door. Mrs Holmes entered alone and came upon the deceased’s body lying on the floor next to the bed. Except for her nightdress pulled over her face, she was otherwise naked. She uncovered the deceased’s face and saw that she was blue in the face. She covered the deceased’s lower-body with a mat and called Alain to come and check on the deceased. He felt no pulse and realised that she had died. He observed a bruise on the forehead and a blue line on the deceased’s neck. There was also dried blood in the corner of the mouth. The police was summoned to the scene and after some preliminary examination was done, they loaded the body and returned to Outjo.

[4] The evidence of Brian Holmes regarding the circumstances under which the deceased’s body was discovered on the Sunday afternoon corroborates in material respects that of his wife Juanita, and Alain. According to Alain the deceased was a widow and had no children. Except for further mentioning that they were busy with refurbishment and enlargement of the camp and facilities at the time, during which period there lived about 100 workers on site, the evidence of these witnesses takes the matter no further.

[5] I interpose to briefly refer to evidence concerning the accused when he and his colleague, Marshall Horaeb, installed air conditioners at the house of the deceased on 18 and 19 September 2008. Mathilda Hikas had been doing domestic work for the deceased for only one week when the accused and Marshall arrived to install air conditioners at the house. On the Friday morning (19^th) the accused asked Mathilda for a knife in order to sharpen his pencil and she handed him one which she took from a set, one with a black handle. According to her he never returned the knife to her. She went on to say that the accused later asked her about the deceased’s marital status and whether she had any children. Though the accused were to return the next day, Saturday the 20^th, to hang pictures for the deceased, he and his co-worker did not show up. According to Mathilda and on the instruction of the deceased, the windows of the house had to remain closed at all times due to a previous incident when a snake found its way into the deceased’s room when she was still living at Okaukuejo in Etosha National Park. On Monday (22^nd) she was shown a broken knife by the police which she identified as the same one she had given the accused on the Friday. She only then learned of the death of her employer.

[6] It is not disputed that two knives were found during the investigation on the side of the deceased’s house, among some nearby growing shrubs.[2] The one was an ordinary table knife, whilst the other had a black handle; the latter was found broken in two pieces. This is the knife Mathilda had given the accused and according to her, it still had traces of cement on it since the accused had used it. She denied imputations that the accused had left the knife on the kitchen table before he left and, although she did not specifically at any stage afterwards went back to check whether the knife had indeed been returned, she was adamant that it was not placed on the table as she would have seen it before she finished her duties that day. She further denied having given the accused information about the deceased’s family, the reason being that she had no such information as she had only recently started working for the deceased.

[7] Marshall Horaeb confirmed having worked with the accused on 18 – 19 September 2008 when installing air conditioners at the deceased’s residence. He had mostly worked outside the house building a stand for the outside unit, while the accused worked inside the house. He confirmed that accused asked Mathilda for a knife to sharpen his pencil; also that the deceased asked them to return on Saturday to hang her pictures. They however did not go to the deceased’s place as promised as they were given other duties at the lodge. As for him allegedly having been present when the accused left the knife and a cup on the kitchen table before leaving that Friday, he disputed it. He said that although they worked on Saturday, he did not see the accused after they finished working because the accused obtained permission to leave earlier. He said the accused did not come to work on the Sunday, and told him that he wanted to return to the place where he had been the previous day. Marshall’s evidence was not significantly challenged by the defence.

[8] After a report was made to the police of Outjo, Sergeants Gariseb and Ambutu travelled to Etosha Safari Camp on late Sunday afternoon where they attended to the crime scene. They found the body of the deceased in her house as was described by the witness Juanita Holmes. He summoned Inspector Hoaeb of the Scene of Crime Unit, Otjiwarongo, who photographed the scene the same evening. Because it became late they all returned the following day (Monday 22 September) to continue with the investigation. Having learned about the workers living on site, interviews were conducted with them, during which it was established that the accused had left the camp site the previous night to go to Anderson Gate, situated some 10 km away. Accused confirmed that he went there the previous day and said he returned with a double-cab pick-up. The latter could however not be verified. Sergeant Gariseb said the accused was further interrogated and had his room searched by Detective Inspector Katjiua (as she then was). Clothing and a pair of running shoes (‘tackies’) bearing blood spots were found in his possession; this subsequently led to his arrest.

[9] In cross-examination Sergeant Gariseb said that upon their arrival at the scene, he went around the house and found three windows open. No footprints were observed underneath any of these windows the following day. Between 7 and 8 police officers travelled to Anderson and Ongava gates to interview persons there in order to obtain information about the pick-up the accused claimed to have travelled in back to the camp.

[10] Inspector Hoaeb said he photographed the crime scene upon his return the next day and, as for the lifting of any identifiable fingerprints inside the deceased’s house, he was unable to find any. He compiled a photo and sketch plan of the crime scene which was handed into evidence. He also attended and photographed the post-mortem examination conducted by Dr Shangula at the police mortuary in Windhoek on 26 September 2008, which forms part of the photo plan (Exhibit ‘E’). Dr Shangula during the autopsy collected samples for purposes of forensic analysis which she packed and sealed in a rape kit, and handed it to Inspector Hoaeb for safe keeping. This was booked in at the Otjiwarongo Police Station and handed over to Inspector Katjiua the next day. On the night he attended the crime scene, he noticed blood spots on the bed sheet and duvet cover and took it along and locked it in the strong room of his office in Otjiwarongo. These were handed over to Inspector Katjiua who took it upon herself to collect all the exhibits.

[11] Deputy Commissioner Katjiua[3] attended the crime scene on Monday, 22 September 2008 and was briefed by Juanita Holmes as to what had happened. Having viewed the deceased’s body in the mortuary before departing for the crime scene, she scanned the deceased’s house in search of something that would match the injuries observed on the deceased’s body. She saw a candle holder (lying on the floor) and noticed that it had dry blood on it and concluded that it could possibly yield forensic evidence. It was decided to call in experts from the National Forensic Science Institute (NFSI) and on Friday, 26 September 2008 Dr Ludik and a team of scientists attended the crime scene. During their investigation blood stains showed up on the bed sheets, floor and candle holder.

[12] The accused at some point was in the reception area and when Dr Ludik sprayed his tackies with a chemical used for the screening of human blood, it reacted positively. The accused was requested to surrender his shoes to the police which was sealed in a bag. Saliva swabs were also taken from the accused and a certain Katambo. The investigation was then extended to the sleeping quarters of the accused where several pieces of clothing were seized and tested (screened) for forensic analysis. Deputy Commissioner Katjiua said that before the accused handed over these items, she by then had already explained to the accused’s his rights and that the exhibits seized could be used as evidence.

[13] On Saturday, 27 September 2008, Deputy Commissioner Katjiua interviewed a roommate of the accused who then informed her that the Bermuda shorts the accused had earlier handed over was not the one he wore on the Friday[4] as he had been wearing cream coloured camouflage Bermuda shorts. They returned to the accused’s living quarters and told him to hand over the trousers he had been wearing the previous Saturday. He first took out blue Bermuda shorts and then a white jean. When told that this was not what they had come for, he then produced the camouflage Bermuda shorts that were retrieved between the bed and the mattress. The accused informed them that he was suffering from spontaneous nosebleeds which explained the blood spots visible on the blue Bermuda shorts. According to Deputy Commissioner Katjiua the camouflage Bermuda shorts were clean and appeared to have been washed; she did not look for blood stains on it though. She then ordered the arrest of the accused and informed him of his rights, including his right to apply for legal aid.

Incriminating statements made by the accused

[14] From interviews conducted by the police with some of the workers at the camp site, information was obtained about the accused’s movement on the Saturday and Sunday[5], and conversations he allegedly had with some of his co-workers about the killing of the deceased.

[15] Johannes Damaseb (Johannes), together with two others, was sharing a room with the accused at the time and said that the accused on the Saturday afternoon knocked off earlier, as he wanted to go to Ombika gate. Before leaving the accused borrowed N$20 from him. He observed that the accused was wearing beige/green camouflage shorts and Green Cross sandals. This the accused confirmed during his testimony. Accused only returned late at night when they were already asleep and after waking him, told him that he had been enjoying himself at Ombika where he won N$400 (on the jackpot machine) with the money he had borrowed from Johannes. He further said that a white lady had apparently been raped and murdered at the camp site. Johannes did not respond on what the accused had told him and returned to sleep. When he went for work on Sunday morning the accused was still in bed. He did not see the accused during the day as he, the accused, only returned late at night when they were already asleep. In cross-examination he was adamant that the accused made the report on Saturday night and not Sunday night, as he claims. His testimony that he had already been sleeping the Sunday night when the accused returned, was not challenged.

[16] The accused’s account of the events on Saturday night differs markedly from that of Johannes. Although admitting that those he had been sharing the sleeping quarters with were asleep when he returned from Ombika that night, he said the door had been locked and he had to wake Johannes to open for him. He confirmed having told him about the money he had won at playing the jackpot, but claimed to only have told him about the murder at the camp on Sunday night upon his return from Ombika, not the Saturday night. He further testified that he had brought along a bottle of wine which he finished the following morning as he suffered from a hangover. This was the first time the court heard about him having consumed a bottle of wine on his way home; neither was the witness questioned on his sobriety upon his return. The importance of the report allegedly made by the accused to Johannes on the Saturday night is self-incriminating in that, by then, the murder of the deceased had not yet been discovered.

[17] The second report pertaining to the death of the deceased allegedly made by the accused, was testified on by Goliath Katambo (Goliath). He was also employed as a cleaner at Etosha Safari Camp during the relevant time and he and the accused had worked together. He however did not stay at the camp site and after work on Saturday, he and his co-workers were transported to Ombika where he shared a house with one Matte. The next morning (Sunday) whilst sitting outside the house, the accused arrived and asked whether he had heard that Ms Fiona from the lodge had been raped and killed. Other than being surprised at the news, he did not say anything further; neither did he inform anyone else about what he had learned from the accused. The first time he shared this information was with the police during interviews conducted with the workers.

[18] In cross-examination it was put to him that the accused was at work on Sunday morning and therefore could not have been at his place. He was however adamant that it had been the accused who came there on Sunday and made the report. Accused was known to him as they had been working together at the lodge, and that the accused was working on the air conditioners. When asked why the accused would have shared such information with him as he did not even know him, he replied that he was equally surprised for him having done so. When questioned on the statement he had made to the police in which he stated that the accused came there on Saturday morning and not Sunday, he explained that his statement was only taken on 12 November 2013 (more than five years after the incident) and he only later realised that he had the dates wrong, as the accused came to their place on the Sunday morning.

[19] I pause to observe that the date of Saturday 20 September 2008, as per his statement, as the day on which the accused made the report, is clearly wrong. Evidence adduced shows that the deceased on Saturday evening had been dining with her colleagues and therefore could not have been reported on as having been raped and murdered prior thereto. The witness’ explanation that he afterwards realised that, due to the lapse of time, he had made a mistake about the date in his statement, appears to me reasonable in the circumstances.

[20] The accused’s account of events taking place on the Sunday morning is that he was at work and only went to Ombika at around 3 pm. He had not known the witness (Goliath) and only came to see him on Monday when they were rounded up by the police for interrogation. The evidence of the accused that he had been working on the Sunday morning was disputed, not only by the witnesses Johannes and Goliath, but also by his handyman, Marshall, who corroborated Johannes’s version that the accused was still in bed when they left for work who then, when asked whether he would be working on that day, replied that he would not as he intended going back to Ombika. That corroborates Goliath’s evidence that the accused was already at Ombika in the morning and not only in the afternoon as he testified. In addition, the foreman, Thomas Horaeb, under whose supervision the accused worked at that stage, also testified that the accused did not turn up for work on the Sunday. Both he and Brian had been working that day and had the accused worked as he claims, they would have been aware of it.

[21] The upshot of it all is to show that the accused was not working on the Sunday morning, which supports the witness Goliath’s version that he had come to Ombika already in the morning when making the report about the deceased. What is further clear from the evidence of Johannes and Goliath is that they were independent witnesses who were staying about 10 km apart, and had no contact for the period in which the respective reports were made. It had neither through cross-examination or otherwise been shown that they were not credible and each claim to have had a good relationship with the accused, thus there was no reason to falsely implicate him.

[22] Whereas the murder of the deceased by the time these reports were made by the accused had not yet been discovered, it means that the accused parted information which he could only have had if he was involved in the commission of the offences. And more so about the deceased having been raped. Evidence about the deceased also having been raped only became known during the post-mortem examination and not before. How would the accused have known about it if the police themselves, or anyone else for that matter, had not known about it? As will become apparent later in the judgment, the truth of the content of the reports made by the accused prior to the discovery of the deceased’s body, is consistent with forensic evidence placing him at the scene of the crime.

[23] Deputy Commissioner Katjiua heard from Inspector Hoaeb, who attended the post-mortem examination in Windhoek, that a sexual act had also been committed with the deceased. She was subsequently handed the rape kit prepared by Dr Shangula.[6] After the accused appeared in the magistrate’s court in Outjo on Monday, 29 September 2008, she instructed that the accused be taken by Inspector Snewe to Dr Kesslau for examination, who then prepared a rape kit in respect of the accused which was handed over to Deputy Commissioner Katjiua.[7]

[24] Deputy Commissioner Katjiua was further responsible for the collection and safe keeping of all exhibits collected in connection with the investigation. She packed the exhibits, each having been separately sealed in an exhibit bag with distinctive numbers, in a box and subsequently prepared the required application forms for scientific examination by the NFSI.[8] A separate application form was completed for the rape kits in respect of the deceased and the accused, submitted separately.[9] On 03 October 2008 she travelled to Windhoek and handed over all the exhibits and application forms to Warrant Officer Goraseb of the Scene of Crime Unit, the person in charge of all exhibits dispatched for scientific examination. He confirmed receiving the exhibits in question and after having been satisfied that each item was properly packed and the seals still intact, he registered the exhibits in his office. He endorsed the accompanying application forms accordingly and obtained a reference number from the NFSI which was entered onto the forms as shown on Exhibits ‘Q1 – ‘Q4’.

[25] Maryn Swart, a Chief Forensic Scientist and Head of the Generic Section at the National Forensic Science Institute in Windhoek testified that Dr Ludik, the Director of the NFSI, was instructed to attend the crime scene. Before their departure on 26 September 2008, a team of forensic scientists, including Dr Ludik and herself, viewed the deceased’s body at the Windhoek mortuary to familiarise themselves with the various injuries inflicted, and documented and photographed same. The purpose thereof was to guide medical officers in the collection of specific evidence where necessary. At the crime scene itself, several swabs were taken from areas of interest on which human blood was detected. Blood spatter or droplets were visible on the bedding while blood stains, initially not clearly visible to the eye because of the dark colour of the floor, showed up when sprayed with a chemi-luminescent chemical. Areas of interest were identified, marked and photographed as depicted in Exhibit ‘G’. Exhibits that tested positive for human blood during the initial screening process were a pillow case, and a pair of running shoes (tackies); the latter being shoes the accused was wearing on that day. Buccal[10] swabs were also taken from two persons brought to Ms Swart by the police, as possible suspects. These persons being the accused Jesaya Nikanor and Goliath Kidamb. She placed these swabs in sealed tamper proof forensic evidence bags, each bearing the suspect person’s signature.[11] All exhibits collected by the forensic team at the scene were handed over to Deputy Commissioner Katjiua, the officer tasked to submit all the exhibits for scientific examination.

[26] The preparation and tests of exhibits connected to this case was done by Ms Swart herself and each step was duly documented and photographed as set out in the reports compiled by her and which form part of the evidence.[12] She testified that the seals of all the forensic evidence bags with the exhibits received, were still intact and had not been tampered with. These bags were also photographed, each depicting its unique serial number.

[27] Upon examination of the Adult Sexual Assault Kit (‘Rape Kit’)[13] in respect of the deceased, the vaginal swabs confirmed the presence of semen while the clothing tested positive for human blood.[14] Examining tests were done on 14 December 2010 by the witness on the pillow case found at the crime scene, and the Bermuda (beige) shorts (of the accused), both testing positive for human blood from which swatches were taken for DNA analyses. One of the shoes also tested positive for human blood from which a swab was taken. Not all the exhibits collected were analysed, the reason being that it was simply too expensive to test each exhibit according to Ms Swart. It was further her evidence that the exhibits were again sealed after examination.

[28] On 16 December 2010 seven (7) forensic evidence bags, as set out in Table 2 of the report[15] of exhibits, were sent to the forensic laboratories of British Colombia Institute of Technology (BCIT) in Canada for DNA analyses. Though the outcome of each of the DNA analyses conducted is documented in Report no. 2011-D281-1, and incorporated in the report of Ms Swart, the truth of the evidence contained in the report had not been testified on by its author, Steen Hartsen. Though the admissibility of the BCIT report was not challenged, and the report having been received into evidence by consent, there is, in the light of similar tests done in Namibia by Ms Swart on the same exhibits, no need to rely on the BCIT report for purposes of evaluation of the evidence adduced. Where the court did not have the benefit of hearing the expert evidence from the author of the report, Mr Steen Hartsen, and be apprised of all the facts and the reasoning on which he based his opinions as stated in the report, the court is in no position to determine whether or not the opinions expressed therein are reliable. In the circumstances the court would not attach any weight thereto.

[29] It was further testified that sufficient amounts of all the exhibits, except for fabric swatches taken from the beige Bermuda shorts (Q12) and the pillow case (Q16) remained for retesting. It is common cause that these exhibits were duly resealed with red seals and tape, were given additional numbers by BCIT[16] where after it was returned to the NSFI. These were again stored in the store room of the NFSI until the instruction came that it should be reanalysed due to the unavailability of the expert analyst from BCIT to give evidence.

Forensic analysis by NFSI

[30] Ms Swart said she booked out the exhibits from the registry and by 13 June 2016 had completed the DNA analyses, and noted her findings in Report 730/2008/R6, admitted into evidence as Exhibit ‘S’. The exhibits were found sealed in tamper proof forensic evidence bags upon examination. There were no signs that it had been tampered with. Because the swatch from the beige Bermuda shorts had been consumed by BCIT, a fresh swatch had to be recollected from the exhibit. Adjacent to the area from where the initial swab was obtained, she took another sample. The procedure followed to collect a fresh sample was duly photographed and forms part of the report.[17]

[31] Only a selection of exhibits that were analysed by BCIT and returned to NFSI were reanalysed by Ms Swart, which comprised the following:

Saliva swab: ‘Nikanor Jesaja’ (K063-).

Oral swab: Deceased (K065-).

Cervical OS; Vulva; Rectal; Vaginal Vault; External Anal; and Vestibule swabs (Q001 – Q006). [Deceased]

Body fluid A swab; Body fluid B swab; Fingernail swabbing right; Fingernail swabbing left; Fingernail cutting (Q007 – Q011). [Deceased]

Swab from candle holder (Q012).

Recollected swatch from ‘Bermuda (beige)’ (Q013).

[32] Ms Swart testified in detail on the tests carried out on the respective samples. Her testimony in this regard need not be restated, suffice for saying that the evidence established that the samples subjected to examination were not tampered with and excludes the possibility of any contamination during the process of analysis. The process was also photographed step by step as depicted in Report 730/2007/R7. DNA is extracted by a semi-automatic instrument called ‘Automate Express’ which is annually validated by an external company who validates it on site to determine whether the instruments function properly and present reliable and sensitive results. The validation of instruments used was reported to be up to date.

[33] The analysis presented the following findings: The buccal swab of ‘Jesaja Nikanor’[18] yielded sufficient DNA and resulted in a complete male profile suitable for comparison purposes. The oral swab of the deceased[19] equally yielded sufficient DNA and resulted in a complete female profile suitable for comparison purposes.

[34] I do not deem it necessary to repeat every finding made in respect of each exhibit contained in the report, and will only refer to those findings relevant to the outcome of these proceedings.

[35] The following findings were made:

(a) The epithelial fraction of the vestibule swab[20] yielded a mixed profile of at least two individuals from which the deceased cannot be excluded as a possible major contributor, while the sperm fraction yielded a partial male profile from which ‘Jasaja Nikanor’ cannot be excluded as a possible contributor.

(b) The epithelial fraction of the vulva swab[21] yielded a complete female profile from which the deceased cannot be excluded. The sperm fraction also yielded a mixed profile of at least two individuals from which the deceased cannot be excluded, while ‘Jesaja Nikanor’ cannot be excluded as a possible major contributor.

(c) – (d) Identical findings were made in respect of the vaginal vault swab[22] and cervical os swab[23] where the sperm fractions yielded mixed profiles from which ‘Jesaja Nikanor’ cannot be excluded as possible contributor.

(e) In respect of the fingernail swabbing of the left hand of the deceased[24] the exhibit yielded a mixed profile from at least two individuals from which the deceased and ‘Jesaja Nikanor’ cannot be excluded.

(f) As for the recollected swatch from the beige Bermuda shorts[25] the sample yielded a mixed profile of at least three individuals from which the deceased cannot be ruled out as a major contributor, whilst the results of the minor contributors to the profile is inconclusive.

[36] Also included in the report of findings made in respect of ‘Jasaja Nikanor’, is the estimated probability of selecting an unrelated individual at random from the FBI Black population with the same profile being 1 in 1.24 Billion and beyond. Bearing in mind the current population of Namibia being just over 2.2 million, the probability of an unrelated individual having contributed to any of the samples analysed, can safely be excluded.

[37] In summary, a DNA profile of the accused in respect of four samples taken from the deceased’s genitalia and one sample taken from the deceased’s fingernails of the left hand, was detected on the body of the deceased. In turn, DNA of the deceased was found in blood spatter on the Bermuda shorts of the accused.

[38] I turn next to the accused’s version, having been the only witness testifying for the defence. He confirmed working at Etosha Safari Camp and lodge at the time, more specifically that he installed an air conditioner at the home of the deceased on 18 and 19 September 2008. Contrary to what Mathilda Hikas[26] and Marshall Horaeb[27] testified, the accused was adamant that he had finished hanging pictures for the deceased already on Thursday, 18 September 2008. He admits having asked for a knife to sharpen his pencil and a cup of water to cool down the drill bit, but differs from their testimonies as far as it concerns him having returned same to Mathilda. The knife later found broken outside the deceased’s house as depicted in the photo plan, looks similar though. They finished work at the deceased’s house on Friday 19 September, where after he never returned to that house. On Saturday he finished work at 15:30 and left for Ombika where he stayed until 22:00. He confirmed wearing beige Bermuda shorts at the time. He got a lift up to the camp and when he reached his sleeping quarters, he had to wake up Johannes as the door was locked from inside. He told Johannes that the N$20 he had borrowed from him earlier that day brought him good luck as he won more money with it. He denied having told Johannes about any murder and rape that took place at the camp, as he only came to know about it on the Sunday evening when he returned from Ombika. On Sunday morning he worked on site and after he had finished, he again went to Ombika at around noon. He was back at the camp between 22:00 and 22:30. He further denied having made any report to Goliath about a white lady who was raped and killed.

[39] He was interrogated by the police on the Monday and only arrested on the following Saturday. He confirmed his rights explained to him by Deputy Commissioner Katjiua and elected not to give a statement at the time; also that he was taken to a doctor in Outjo who took samples from his person. As for the blood spatter on his shorts, he explained that his nose was bleeding when he visited Ombika and that the analyst is wrong in her finding that it was the deceased’s blood on his shorts. He is adamant that he had no further contact with the deceased after finishing his work at her place; neither did he have sexual intercourse with the deceased, or kill her.

[40] As far as it concerns the charge of obstructing or attempting to obstruct the course of justice, he disputes having hidden his clothes from the investigating officers and said the reason why clothes were placed between the bed and the mattress, was to straighten it; not to hide it. Not only did he put the beige Bermuda shorts there, but also other trousers of his. In any event, according to him he was not asked to hand over any particular piece of clothing to the police as they were looking through his clothes themselves and apparently knew what they were looking for without informing him as to what it was. He also denied having washed the beige Bermuda shorts as it was still clean.

[41] In cross-examination the accused was asked to explain contradictions between instructions put across to state witnesses earlier about the knife and a cup of water he had asked from Mathilda, which differed markedly from what he testified. He was however unable to come up with any satisfactory explanation and seemed to have shifted the blame onto his counsel for not raising it with the relevant witnesses during their testimony. According to him this had been included in his instructions to counsel. The same applies to his evidence about the door of their sleeping quarters that was found locked, evidence which was left unchallenged when Johannes testified to the contrary. As to why the evidence of Deputy Commissioner Katjiua was not challenged on what clothes the accused was required to hand over to the police when requested, the accused replied that he was legally represented. When the court sought clarity from him as to whether he during any of the breaks in the trial told his lawyer about their conflicting versions, he confirmed that he did, but was told by counsel that there was nothing to be done; also that he did not fully understand some parts of the evidence of Deputy Commissioner Katjiua, who had been testifying in English. He further said that though the interpreter sat right next to him in the dock, he (the interpreter) assumed that he followed the evidence.

[42] I pause here to observe that the accused throughout the proceedings was out on bail and was on numerous occasions during the trial approached by counsel to obtain fresh instructions. It therefore came as a surprise to all and sundry when the accused asserted that he was not afforded the opportunity to speak to his counsel. As for him not following the evidence of Deputy Commissioner Katjiua, it seems surprising to hear that he did not call on the services of the interpreter at his side, or for his counsel not to have brought it to the court’s attention when informed by the accused. I find the accused’s behaviour in this respect peculiar and the extent of his explanations unconvincing.

[43] As was conceded by defence counsel, Mr Tjituri, that the accused, due to the nature of the evidence given by Ms Swart, a forensic scientist, was in no position to challenge and refute her findings. The accused persisted that the blood spatter found on his Bermuda shorts was his own and, if found to have been that of the deceased, then it must have been affected by the police, or was brought about due to contamination when handling the exhibits. In the light of the evidence adduced, the possibility of this having happened is so remote that it can safely be excluded. In fact, it was virtually impossible as the body of the deceased was already removed from the scene and in the mortuary by the time the accused’s beige Bermuda shorts were retrieved. Furthermore, whereas no semen sample had been taken from the accused, there is no logical explanation as to how his DNA profile could possibly find its way inside the deceased’s genitalia. Logic dictates that this could only have been deposited when a sexual act was committed with the deceased. The defence raised by the accused on this point therefore has no merit and requires no further consideration.

The court’s approach to expert evidence

[44] When dealing with expert evidence, the court must be satisfied that a witness is competent to testify as an expert and has the necessary expertise on the subject he or she is called upon to testify.  In its determination whether the expert witness’ evidence is relevant to the case, the court will follow a realistic approach.[28] The evidence given by Ms Swart undoubtedly amounts to expert evidence and from her testimony it is patently clear that through special studies in the particular field, training and experience, she is qualified to express an opinion as Chief Forensic Scientist with the NFSI, on DNA examination and interpretation. The function of an expert is essentially to assist the court to reach a conclusion on matters on which the court itself lacks the necessary knowledge to decide. Though guided by the opinion of an expert, the court must be mindful that it is not the expert witness’ opinion which is decisive, but rather to persuade the court because of his or her special skill or expertise, that the reasons for expressing the opinion, is acceptable.[29] It is therefore necessary that the court be apprised of all the facts and the reasoning on which the opinion is based. It is however not an absolute rule that the basis of the opinion must be stated, because sometimes it may be impracticable to insist on a comprehensive explanation of how an apparatus or a device functions.[30]  If the Court is satisfied that the evidence of the expert can assist it in its determination of the facts and as such is reliable, it may rely thereon.  However, in the final instance it remains for the court to decide whether the opinion is correct.  Where the court deals with highly technical evidence – as in this case – and is unable to draw a reliable inference on its own, the court is obliged to fully rely on the expert’s opinion, even where the opinion would concern the very question that the court must decide.  In such instance a high level of precision and care is expected from the expert witness when conducting the tests.  It has also been said that the courts should not assume the function of the expert witness and base its judgment on own observations and deductions in what should be an area of expertise.[31]

Conclusion on DNA evidence

[45] When applying the afore-stated principles to the present facts, I am satisfied that Ms Swart is an expert in the science of DNA and that she performed her examination relating to samples taken during the investigation of the case, with the necessary care and precision. Also that the opinions of Ms Swart on exhibits subjected by her to DNA analysis, represent a well-reasoned conclusion based on certain facts or data which are either common cause, or had been established by her own evidence. Except for the accused’s unsubstantiated assertion that the investigating team colluded to falsely implicate him, there was no real attack on the expert opinions of the witness regarding the compilation of DNA profiles of both the deceased and the accused. As far as it concerns the expert evidence presented, I am satisfied that the opinions expressed, as set out in the reports, are sound, and the reasons provided for the conclusions reached, being satisfactory. Accordingly, I am satisfied beyond reasonable doubt that the expert evidence presented herein, is reliable and I so find.

The link between DNA evidence and the accused

[46] In the absence of evidence to the contrary, the only reasonable conclusion to come to is that the presence of the accused’s DNA found on several samples taken from the genitalia of the deceased, directly links him to a sexual act committed with the deceased. As for evidence of the transfer of the deceased’s blood onto the clothing of the accused, and the presence of his DNA on samples taken from the deceased’s left hand, this in the circumstances of the case, directly connects him to the deceased found lying lifeless on the floor of her bedroom. The evidence has further established that there was otherwise no direct physical contact between the accused and the deceased when alive. Therefore, the transfer of biological material could not have taken place as suggested by the accused. The only time this could have happened was during the commission of the crimes, which clearly had an element of violence to it if regard is had to the injuries inflicted to the body of the deceased, and the untidy condition the bedroom was found in.

[47] The forensic evidence implicating the accused is further consistent with reports he allegedly made to two individuals at a time even before it had become known that the deceased was raped and murdered. At no stage prior to the post-mortem examination was it known that the deceased had been raped, yet two independent witnesses heard him making reports to that effect. These reports, by itself, are clear indicators of the accused’s involvement in the commission of the offences committed and, when considered together with the forensic evidence implicating him directly with a sexual act committed with the deceased, it seems inescapable to come to the conclusion that the evidence overwhelmingly points at the accused as the culprit. In the absence of evidence to the contrary, it can safely be inferred that the same person who had sexual intercourse with the deceased, was responsible for her death; that person being the accused.

[48] The conclusion is fortified by DNA evidence of the accused found in the genitalia of the deceased and traces of the deceased’s blood on Bermuda shorts he had been wearing on the relevant day. Evidence of body material of the accused found under the nails of the deceased’s left hand, is indicative of resistance put up by the deceased against her attacker, and disavows any notion of consensual sexual intercourse.

[49] In the result, and for all the aforesaid reasons, I am satisfied that the State proved beyond reasonable doubt that the accused unlawfully committed a sexual act with the deceased, where after she was murdered.

[50] The post-mortem report was handed in by consent[32] according to which the deceased died of head injuries. Three areas of scalp contusion were noted while several abrasions were noted on the face and neck, with a large abrasion below the chin and right side mandible. Though there were signs of bleeding from the nose, there is however no sign of bleeding in the neck skin, or neck muscle, indicative of strangulation. Despite the lack of evidence that could show (if possible) how long after the assault the deceased succumbed to her injuries, it can reasonably be inferred from the extent and seriousness of the head injuries that a significant degree of force was required to inflict the injuries. Also bearing in mind that the head is considered one of the more vulnerable aspects of the human anatomy, it further seems reasonable to infer that death was foreseeable. Accordingly, in my view it has been established that the accused when inflicting the said injuries to the deceased’s head, had acted with direct intent (dolus directus).

The element of housebreaking

[51] Turning next to count 2 where the accused is charged with the offence of housebreaking with intent to rape and rape[33] the State bears the onus to prove beyond reasonable doubt an unlawful entry with the accompanying intention to rape. Evidence pointing at the manner in which access was gained into the house relate to one or more windows found ajar. Though the exact number of windows afterwards found open is, in my view, of less importance, there is no concrete proof as to how access was gained. The fact that windows were found open does not mean to say that the perpetrator must therefore have entered through them. He could equally have opened different windows once inside to make his escape good if necessary. No signs of any forced entry were found and, although it seems unlikely in the circumstances of the case that the deceased would have left one or more windows, or even a door open at night, such possibility cannot be completely excluded. Neither could it, in the absence of evidence to the contrary, be ruled out that the deceased might have opened the door when someone came knocking. It seems unlikely though that the deceased would have opened the door when wearing only a nightdress.

[52] It was inter alia submitted by the State that the knife the accused had borrowed when working there earlier, could have been used to open the window, seeing that it was afterwards found broken just outside the house. Although it might be possible, there is no evidence before the court from which such inference can be drawn.

[53] With due observance of the established rules of logic in connection with circumstantial evidence as formulated in R v Blom,[34] an inference that there was a ‘break in’ would be speculative and not consistent with the proved facts and, for that reason alone, it should not be made. I accordingly decline to do so and find myself unable to convict the accused of the offence of housebreaking with intent to rape. The offence of rape coupled thereto was however duly proved and where several injuries had been found inflicted to the body of the deceased, it could reasonably be inferred that a sexual act was committed under circumstances where physical force was applied to the person of the deceased.

Defeating or obstructing the course of justice

[54] In count 3 it is alleged that the accused made him guilty of defeating or obstructing, or attempted to defeat or obstruct the course of justice by:

(a) Washing or otherwise cleaning the beige Bermuda camouflage shorts; and/or

(b) Hiding the beige Bermuda shorts under a mattress; and/or

(c) Handing to the police pants other than the beige Bermuda shorts when asked to produce the clothes he wore on 20 September 2008.

[55] Deputy Commissioner Katjiua said she acted on advice from Dr Ludik when deciding to look for clothes that might establish a link between the crime scene and the suspects. She and other officers on the first occasion[35] went to the sleeping quarters of the accused where he, from under his mattress, took one blue Bermuda short that was still moist after it had been washed, a brown pillow case and a brown/beige T-shirt. Besides having informed the accused of his rights, nothing was further said or asked from the accused. On Saturday 27 September 2008 when Johannes Damaseb (with whom the accused had been sharing a room) gave his statement to the police, it was discovered the blue Bermuda shorts earlier seized by the police was not the one the accused had been wearing the previous Friday;[36] he had been wearing the beige Bermuda camouflage shorts. Armed with this information they again set off to the accused’s sleeping quarters where he was asked to hand over the trousers he wore the previous Saturday when he left the camp site. He took a dark green Bermuda from the wardrobe which he handed to Deputy Commissioner Katjiua. Having informed the accused that this was not what she was after, he handed her a white pair of jean trousers. Again she told him that it was not what she came for. He then took from underneath the mattress the beige Bermuda shorts and handed it over to the officer. According to her the shorts were clean, from which she inferred that it had been washed. There is however no evidence to support such inference. On the contrary, according to the evidence of Ms Swart who consulted photographs taken from the beige Bermuda shorts, it did not at all appear to her to be clean. The accused also denied having washed it after he wore it on the previous Saturday. It was common cause that a blood stain was visible on it, the only issue being who the donor was. In these circumstances the testimony of Deputy Commissioner Katjiua that the shorts appeared to her to be clean, is clearly not correct.

[56] The evidence summarised in the preceding paragraph, in my view, clearly refutes the allegations set out in (a) above and nothing further needs to be said in that regard. As for (b) where the accused allegedly hid the pair of trousers under the mattress, there seems to be nothing sinister about that as it was not the only piece of clothing that was placed there by the accused. As testified by Deputy Commissioner Katjiua, and confirmed by the accused, it was practice to place creased clothing under the bed’s mattress to straighten it where ironing was not possible. In view thereof, it seems impossible to find, by way of inferential reasoning, that the accused attempted to defeat the ends of justice when placing the beige Bermuda shorts under the mattress. I accordingly decline to do so.

[57] The allegations in paragraph (c) can only refer to the second occasion when the police went to his room in search of the beige Bermuda shorts, because during their first visit he was not asked to hand over clothes he had been wearing on a specific day. On the last occasion he handed the police two pairs of trousers before handing them the beige Bermuda shorts they were specifically looking for.

[58] The accused denied having been asked to specifically produce the clothes he had been wearing on the previous Saturday, and said he was merely asked to hand over his bag with clothes and to take out the clothes that were under the mattress, which he did. It is common cause from the evidence adduced that the accused was not asked for a specific pair of trousers (beige Bermuda shorts), only what he had been wearing a week ago.

[59] It is alleged that by first handing the police two pairs of trousers before handing over the beige Bermuda shorts they were actually looking for, the accused intended to defeat or obstruct the course of justice in that he knew his conduct may interfere with or frustrate the police investigation. According to the accused he would not have kept the suspect trousers with him if he intended to hide it from the police; he would have stashed it in the veld. It would appear to me that his evidence in this regard is not without merit as there were other ways and means he could have disposed of it, if he intended to hide it from the police. Secondly, could the possibility be ruled out completely that the accused was uncertain as to what he had been wearing a week ago and therefore unintentionally handed over different pairs of trousers? According to him he was not told what exactly they had come for. Could that perhaps explain why he took out different pairs of trousers to see what they were actually looking for? Before an inference could be drawn from the proved facts as regards the accused’s criminal intent when handing different pairs of trousers over to the police, the court must be satisfied that ‘the proved facts should be such that they exclude every reasonable inference from them save the one to be drawn’[37] and, if other reasonable inferences are not excluded, then there must be doubt.

[60] In the present circumstances I am not convinced that it had been established beyond reasonable doubt that the accused, at the relevant time, acted with intent to defeat or obstruct the course of justice. Having come to this conclusion, there is no further need to decide the question raised mero motu by the court as to whether or not the accused was under a legal duty to assist the police in their investigation by handing them evidence in circumstances where he was already a suspect.

Conclusion

[61] In the result, the court’s verdict is as follows:

Count 1 – Murder: Guilty.

Count 2 – Housebreaking with intent to Rape:  Not guilty.

Rape, in contravention of s 2(1)(a) of the Combating of Rape Act 8 of 2000:  Guilty

Count 3 – Defeating or obstructing, or attempting to defeat or obstruct the course of justice:   Not guilty.

JC LIEBENBERG

JUDGE

APPEARANCES

STATE F Shikerete

Of the Office of the Prosecutor-General, Windhoek.

ACCUSED M Tjituri

Instructed by Tjituri Law Chambers, Windhoek.

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