REPUBLIC OF NAMIBIA

							CASE NO.; CC1/2009

IN THE HIGH COURT OF NAMIBIA
In the matter between:

THE STATE								Applicant

and

LAZARUS NATANGWE SHADUKA				Respondent

Heard:        8 February 2011 Delivered:   22 March 2011

whom I shall refer as "the accused", was acquitted on a count of murder, read with the provisions of the Combating of Domestic Violence Act, 2003 (Act 4 of 2003), but convicted on the competent verdict of culpable homicide in relation to his wife, the deceased. He was also convicted on a second charge of attempting to defeat or obstruct the course of justice. On the first count he was sentenced to a fine of N$25 000 or 1 year imprisonment. On the second conviction he was sentence to a fine of N$2000 or 2 months imprisonment.

[2] The State is seeking leave to appeal against the acquittal on the murder count. It further seeks leave to appeal against both the sentences imposed. The application is opposed.

SA 297 (AA) at 299D:

"	die 'moontlikheid' dat die Hof van Appel 'n 'moontlike' fout in die
beredenering sou kon vind en 'miskien' tot die konklusie kon kom dat die verhaal van die beskuldigde waar kan wees, is so 'n anemiese toets dat 'n aansoek vir verlof in enige saak daarop sou kon slaag. Alleen dan wanneer die Verhoorregter tot 'n weloorwoe konklusie kom dat daar gronde is waarop die Hof van Appel tot 'n ander afleiding van die feite kan kom as wat hy gekom het, en daar dus 'n redelike moontlikheid van sukses vir die applikant bestaan, behoort verlof toegestaan te word. Bestaan daardie moontlikheid, behoort verlof ook toegestaan te word sonder huiwering of teesin."

[my translation follows]:
"...the 'possibility' that the Court of Appeal may find a 'possible' error in the reasoning and may perhaps come to the conclusion that the story of the accused may be true, is such an anaemic test that an application for leave in every case could succeed thereon. Only when the trial Judge comes to a well-considered conclusion that there are grounds on which the Court of Appeal can come to a different conclusion on the facts to the one to which he has come, and that the applicant thus has a reasonable possibility of success on appeal, ought leave to appeal to be granted. If that possibility exists, leave ought to be granted without hesitation or reluctance."

767H).

"In determining whether or not to grant a convicted person leave to
appeal 	the dominant criterion is whether or not the applicant will

[6] The State lists several grounds of appeal against the conviction on culpable homicide. They are as follows:

"That the Honourable Judge misdirected herself and/or erred in law and/or in fact by:

	The reason why the respondent pulled the trigger remains totally unexplained as the court rejected the respondent's version that the deceased fell back onto the firearm;
	The reason why the respondent did not activate the safety catch of the firearm remains wholly unexplained;
	The reason why the respondent did not point the firearm away from the deceased remains totally unexplained;
	The reason why the respondent pressed a loaded, cocked firearm against the body of the deceased remains totally unexplained.

	The respondent was correctly found to be a lying witness who gave contradictory explanations to explain his wife's death;
The respondent and the deceased had a troubled marriage with a history of domestic violence and the respondent in the past threatened to kill the deceased;
It is so improbable that it can be rejected as false beyond a reasonable doubt that the deceased would have played with the firearm and cocked it for no apparent reason;
	
	The firearm is a deadly weapon which the respondent fired at close range into the upper body of the deceased with fatal consequences.

[8] As far as the conviction is concerned, I also find it convenient to approach the grounds of appeal collectively. They are essentially aimed at one ultimate finding, namely that the State did not prove beyond a reasonable doubt that the accused acted with intention to kill.

"	[I]f an accused deliberately takes the risk of giving false evidence
in the hope of being convicted of a less serious crime or even, perchance, escaping conviction altogether and his evidence is declared to be false and irreconcilable with the proved facts a court will, in suitable cases, be fully justified in rejecting an argument that, notwithstanding that the accused did not avail himself of the opportunity to mitigate the gravity of the offence, he should nevertheless receive the same benefits as if he had done so."

"... in each case one has to ask oneself whether the fact that a party has sought to strengthen his case by perjured evidence proves or tends to prove that his case is ill-founded, and one should be careful to guard against the intrusion of any idea that a party should lose his case as a penalty for perjury."

[15] As I understand the State's application, it is not based thereon that this Court erred in making any finding on the facts. There is the following statement in paragraph 2 of the notice of application for leave which sets out the factual basis on which the State says dolus eventualis should have been found: "It is so improbable that it can be rejected as false beyond a reasonable doubt that the deceased would have played with the firearm and cocked it for no apparent reason." The fact is that in para. [18] of the judgment on sentence the Court held that it could not reject the accused's evidence on this issue as false beyond a reasonable doubt. In any event, I see no basis on which this finding can be attacked.

"Subjective foresight, like any other factual issue, may be proved by inference. To constitute proof beyond reasonable doubt the inference must be the only one which can reasonably be drawn. It cannot be so drawn if there is a reasonable possibility that subjectively the accused did not foresee, even if he ought reasonably to have done so, and even if he probably did do so."

[17] In my view the insistence by the State that the Court should make a finding of subjective foresight and reconciliation with the foreseen result requires of the Court to make a leap in logic across a chasm that is just too wide.

[18] As far as the sentences are concerned, the State seeks leave to appeal on the grounds that the Court erred by:

"5. Not finding that the respondent's unexplained actions of pressing a loaded cocked deadly weapon (firearm) against the body of the deceased and then pulling the trigger amounts to reckless negligence.
6. Not imposing a sentence of direct imprisonment but imposing a fine on the conviction of culpable homicide and thereby imposing a sentence which is so lenient that it induces a sense of shock and which is grossly inadequate in the circumstances as it does not serve a deterrent purpose at all but puts a stamp of triviality on the crime committed by the respondent;
7. Overemphasizing the personal interests of the respondent and the mitigating factors;
8. Underemphasizing the high degree of moral blameworthiness of the respondent and the fact that the consequences of his conduct were totally foreseeable and of his own making and that the respondent's awareness of the risk involved is an aggravating circumstance:
9. Underemphasizing the interest of the society and not properly considering that this interest of society ties up with the deterrent purpose of punishment and that the punishment must not only deter the respondent but must also deter the public in general from acting in a similar way;
10. Not imposing a term of direct imprisonment but imposing a fine on the conviction of an attempt to defeat or obstruct the...........[course] of justice and thereby overemphasizing the personal circumstances of the respondent and the mitigating factors and thereby putting a stamp of triviality on this offence;

of justice in the circumstances of the case as technical and thereby not considering that the respondent's deliberate and callous........[course] of conduct to defeat or obstruct justice after killing of the deceased is an aggravating factor." [my omissions and insertions]

[19] The State did not expand in argument upon the fifth ground of appeal. In the context of negligence, recklessness is considered to be gross negligence, in which case the ground of appeal is semantic. I shall not consider it further.

[20] The gist of the State's complaint about the sentences imposed is that the imposition of a fine for each of the offences is too light - effective imprisonment should have been imposed. In the heads of argument the State highlighted the need to punish commensurate with the accused's degree of moral blameworthiness and placed emphasis on retribution and the need for deterring others. For all the reasons set out in the judgment on sentence, the sentence imposed for the culpable homicide conviction is in my view not too lenient in circumstances where no assault was proved and where the accused has already been in custody for two years awaiting trial. The amount of the fine is by no means light.

[23] In conclusion on the issue of sentence I am of the view that, bearing in mind that sentence is pre-eminently in the discretion of the trial Court, there are no reasonable prospects that another Court will find that any misdirection was committed in weighing the different relevant interests or that the sentences were glaringly inadequate in the circumstances of this case.

[24] The result is therefore that the application for leave to appeal is refused.

VAN NIEKERK, J
Appearance for the parties:

Office of the Prosecutor General

Instr. by Hennie Barnard & Partners