Februarie v S (CC 4/2016) [2020] NAHCMD 484 (04 September 2020);

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Full judgment

“ANNEXURE 11”

IN THE HIGH COURT OF NAMIBIA

(TO THE SUPREME COURT OF NAMIBIA)

 

Case Title:

Wilhelm Wimpie Derick Februarie v State

Case No.: CC 4/2016

 

 

Division of Court:

Main Division

 

Heard before: Lady Justice Shivute

Hearing: 20 July 2020

 

Delivered: 4 September 2020

 

Neutral citation: Februarie v S (CC 4/2016) [2020] NAHCMD 394 (4 September 2020)

 

 

JUDGMENT ON APPLICATION FOR LEAVE TO APPEAL

THE ORDER:

Application for leave to appeal is dismissed.

REASONS FOR ORDER:

[1]   The applicant was convicted of murder with direct intent. He is not satisfied with the

        conviction hence this application for leave to appeal.

 

[2]   Due to the Covid-19 pandemic, the parties signed an agreement for the matter to be

       decided on the strength of the documents filed before court.

 

Summary of grounds of appeal.

 

[3]   It is contended that the court erred in law and/or fact, by making the following findings:

(a)  That the applicant is the person who murdered the deceased and yet the court acquitted him on other charges that were allegedly committed at the same place and same time.

(b)   The court concluded that there was no music playing at the party yet Frederick said there was music playing, whilst Audrey Bock said there could have been music playing from the television although she could not recall due to her intoxication.

 

       (c)   By not taking into consideration that Audrey Bock testified that she did not observe

       scratch marks, a bite mark or any injuries on the applicant and that the applicant

       appeared normal.

 

       (d)   By making a finding that the applicant told Audrey Bock to tell Andre Tropa that if

       the police asks him about the event of the fateful night, Tropa should tell the police

       that he was not with the applicant when they escorted the deceased to her place. The

       court was further criticised for convicting on an uncorroborated version that was not

       contained in the witness statement given to the police.

 

       (e)   By ignoring the testimony of Ms Swart that the only DNA of the applicant that was

       found on the deceased’s finger nail swab could be from normal contact like hugging.

       Furthermore, if the applicant is the one who strangled the deceased and removed her

       clothes, the applicant’s DNA was going to be found on the deceased’s clothes and on

       the plastic that was found on her head.

 

       (f)   By not taking into consideration that Ms Swart, the forensic expert, testified that

       the blood stain found on the applicant’s jacket contained not only the DNA of the

       deceased but that of the applicant and two other unknown persons.

 

      (g)   By weighing, the version of the applicant and the version of the state when the

      onus to prove the case beyond reasonable doubt rests on the state.

 

       (h)   The last ground is that the court erred by concluding that the state had proven

       its case beyond reasonable doubt.

 

[4]   The last ground is not an acceptable ground of appeal as it is vague. A ground of

        appeal should be clear and specific. The aforesaid ground does not show any basis

        on which it is rested and it lacks particularity. Counsel for the respondent correctly

        argued that it is not a ground but a conclusion by the draftsman of the notice of appeal.

        It is therefore, my opinion that it warrants to be ignored.

 

[5]   In considering whether to grant or not to grant an application for leave to appeal, the

        test is as follows:

        The applicant must satisfy the court that he or she has reasonable prospects of

        success on appeal or it should be shown that an appellate court may arrive at a

        different conclusion. If there is no reasonable chance of success on appeal, then the

        judge should not grant leave to appeal.

        The trial court need not to be certain that the Supreme Court would come to another

        conclusion or view but, there should be a reasonable prospect that the appeal may

        succeed. S v Smith 2012 (1) SACR 562 (SCA) at 7. This approach was also

        followed in S v Nowaseb 2007 NR (2) 640 at 640 F-641A.

 

[6]   It was contended that this court wrongly convicted the applicant of murder as he was

        not supposed to be convicted because he was acquitted on other counts that were

        allegedly committed at the same place and at the same time. The conviction on the

        murder charge did not depend on other counts on which the applicant was acquitted.

        The court gave its reasons why it convicted the applicant of murder and why the

        applicant was found not guilty on the other counts. I therefore find this ground to be

         baseless.

 

[7]   The court was also challenged for making a finding that there was no music playing

        at the party in coming to the conclusion to convict the applicant. The court in convicting

        the applicant did not rely on whether there was music or not. The applicant testified

        that he was dancing with the deceased. However, his version was not corroborated

        by any of the state witnesses who were present. All of them testified that they did not

        see the applicant dancing with the deceased. This court sees no reason why the

        applicant’s friends or acquaintances should dispute that he danced with the deceased.

        In any event, the reasons for convicting the applicant is contained in the court’s

        judgment. I am therefore, of the opinion that this grounds has no merit and it must fail.

 

[8]   Criticisms were again levelled against this court that it failed to take into consideration

       that Audrey Bock did not observe any injuries like scratch marks or bite marks on the

       applicant and that her version was corroborated by Inspector Kamusuvise. This court

       was alive to what Bock testified. The applicant himself, when he responded to the

       state’s plea trial memorandum, stated that he had scratch marks and  wound on his

        hand at the time he was arrested. Thereafter, the applicant changed his version by

        amending his plea trial memorandum and painting a picture that his previous counsel

        did not take his instructions properly. These instructions were allegedly not properly

        taken only where the applicant had contradicted himself. It is trite that once an

        accused has placed his case in the hands of his legal representative, the legal

        representative takes control over the case and the accused cannot distance himself

       from the conduct of his legal representative. R v Matonsi 1958 SA 450 (A) AT 458 as

       cited with approval in S v HN 2010 (2) NR 429 (HC).

 

[9]   The decision of this court was challenged that it made a finding that the applicant is

        the one who told Bock to inform Tropa that he, should not inform the police that he

        was together with the applicant when they dropped off the deceased at her place. It

        was further argued that this part of Bock’s version was not corroborated and it was

        not contained in the statement she gave to the police. I pause to state here that Bock’s

        version was corroborated by Tropa’s version in that regard. The court had also given

        its reasons by rejecting the accused’s version and accepting the versions of state

        witnesses. With regard to the criticism that the court accepted the testimony of the

        witness in court that was not contained in the police statement, it is trite law that

        witnesses’ evidence is not restricted to what they have stated in the statement which

        they gave to the police station.

 

            ‘It should always be borne in mind that police statement were frequently not taken with as

            much care, accuracy and completeness as was desirable. The purpose of such statements

            was to obtain details of an offence in order to decide whether or not to institute a

            prosecution; the statement was not intended to be a precursor to the witness’ court

            statement.’ S v Govender and Others 2006 (1) SACR 322.

 

[10]  The court was again critisised that it ignored that the DNA of the applicant which was

        found on the deceased’s finger nail swab could have been placed there through

        normal contact like hugging. It is common cause that the applicant’s DNA was found

        on the deceased’s finger nail swab. The deceased’s DNA was also found on the swab

        taken from the applicant’s track suit jacket. The applicant tried to explain how the

       deceased’s DNA landed on his jacket and how his DNA found itself on the deceased’s

       finger nail swab. The applicant told this court that the deceased was bleeding from the

       nose and that blood could have landed on his jacket at the time he was separating the

       deceased and one Yvonne Rupping who is also deceased. The applicant further tried

       to explain that his DNA was found on the deceased’s finger nail swab because they

       were ‘sort of dancing’. However, none of the people who attended the party saw the

       applicant and the deceased dancing or the deceased bleeding. Again, even though it

       is possible to transfer DNA through normal contact like hugging, it is not the applicant’s

       version that he hugged the deceased.

 

[11]  An argument was further advanced by counsel for the applicant that if it was the

        applicant who strangled the deceased and removed her clothes, his DNA would have

        been found on her clothing and on the plastic that was found on her head. Although

        there was no DNA profile found on the deceased’s clothes and on the plastic, the

        applicant’s DNA profile was found on the fingernail swab taken form the deceased’s

        finger nail web. This court stated its reasons for convicting the applicant, which

        reasons are contained in its judgment and it is not necessary to recite them as the

        record speaks for itself.

 

[12]  With regard to the ground that this court erred in fact and or law by weighing the

        version of the applicant and the version of the state when the onus to prove the case

        beyond reasonable doubt rests on the state, I am puzzled by this ground and I found

        it difficult to comprehend. Although the burden of proof rests with the state to prove

        the applicant’s guilt beyond reasonable doubt, the correct approach in determining

        the accused’s guilt or innocence was stated in S v M 2006 (1) SACR 135 (SCA) at

        187 H-J as follows:

 

             ‘The point is that the totality of the evidence must be measured, not in isolation but by

              assessing properly whether in the light of the inherent strengths, weaknesses,

              probabilities and improbabilities on both sides (my emphasis) the balance weighs so

              heavily in favour of the state that any reasonable doubt about the accused’s guilt is

              excluded.’

 

[13]  Because this court has given a fully reasoned judgment, it is not necessary for me

        to furnish further reasons. This court is of the opinion that it exercised its discretion

        judiciously. The applicant has failed to show that he has a reasonable prospect of

        success on appeal and that there are reasonable prospects that another court

        might come to a different conclusion.

 

[14]  In the result, the following order is made:

 

           The application for leave to appeal is dismissed.

 

 

Judge’s signature:

 

SHIVUTE J

 

Counsel:

Mr S Kanyemba

Office of the Prosecutor General

Windhoek

 

Mr M Siyomunji

Instructed by Directorate of Legal Aid

Windhoek

 

 

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