Court name
High Court
Case name
S v Kaulinge
Media neutral citation
[2007] NAHC 30












CASE
NO.: CC 14/2007









IN
HIGH COURT OF NAMIBIA








In
the matter between:








THE
STATE











and











ESTHER
KAULINGE











CORAM: MULLER,
J











Heard
on: 17 April 2007








Delivered
on: 18 April 2007









JUDGMENT






MULLER,
J.:

[1] The accused was charged with two charges, both relating to the
death of a baby that she gave birth to. She pleaded not guilty to the
first charge murder of the newborn child and guilty to the second
charge, namely a contravention of s 7(1) of Ordinance 13 of 1962,
namely concealment of birth.






[2]
She was represented by Mr Bondai, instructed by the Directorate of
Legal Aid, and Ms Jacobs acted on behalf of the State. Mr Bondai
handed in a written list of admissions by the accused in terms of
s220 of the Criminal Procedure Act, No 51 of 1977 (CPA). Because the
charges were closely related to the same incident the contents of
this document which was read into the record and admitted by the
accused, also referred to second charge to which she pleaded guilty.





[3]
The Court questioned the accused in terms of s112(1)(b), of the CPA
in respect of the second charge and was satisfied that her answers,
together with the admissions relating to that charge, that were
contained in the document handed in it referred to before, constitute
her guilt to that, charge. The State had also accepted that plea. The
accused was consequently convicted of committing the offence
contained in charge 2.





[4]
The State thereupon called two witnesses in respect of charge 1,
namely the murder charge to which the accused had pleaded not guilty
and made certain written admissions in terms of s220 of the CPA. In
addition the State handed in a warning statement made by the accused
on 28 August 2003 to the police as well as a sketch plan and key
drafted by the Investigating Officer, Constable Aihuki. Both
documents were handed in without objection by the defence.






[5]
Dr José Mendes performed the
post
mortem

examination on the body of the accused’s newborn baby and completed
the form in respect of the
post
mortem

examination. He identified the form and read out his findings as
completed therein. He testified that the baby was alive when born and
this was proved by the well-known test of fluctuating the lungs of
the infant in water. He further found a head wound of the infant’s
skull with bleeding, as well as a wound to its face. Further
important findings were that the mouth, throat and trachea of the
infant were impacted with sand. The cause of death was severe head
injury and asphyxia. He also indicated the wounds on the skull and
face in sketches in his form and noted further that the umbilical
cord was “cut” approximately 8 cm from the body of the baby.






[6]
During cross-examination it was put to the doctor by Mr Bondai that
the accused will testify that she gave birth to the baby while
standing and that the baby dropped to the ground on its head. He
asked whether the head injury could have been caused under those
circumstances. The doctor conceded that it is possible that the head
injury could be caused in that manner. The doctor was questioned in
respect of asphyxia, namely whether it could have been if the infant
was covered with sand and the doctor again agreed that such
possibility cannot be excluded. According to the doctor the length of
the umbilical cord that he found would not prevent the baby from
falling to the ground and he did not mean it was clinically cut, but
merely separated or severed.





[7]
Constable Aihuki testified that she found the body of the baby in a
shallow grave near a tree in a Muhongoland near the homestead where
the accused stayed. She also found blood on a spot where the accused
apparently gave birth to the child. Another woman indicated the
points to her. She was not cross-examined.





[8]
After the State closed its case, the defence called the accused to
testify. My distinct impression of her is that she did not show any
emotion and that her counsel had to draw the details of what happened
from her. An example is that she just described that she gave birth
while standing and only after pertinent questions were put to her of
how the child was born, what part of the child came out first and
how the injuries that the doctor found could have been caused, did
she give any detailed explanation. She testified that she felt a pain
in her stomach and ran out of the house, because she thought it was a
normal bowel movement, she wanted to relieve herself. Only then she
started giving birth in a standing position. She did not testify
about her pregnancy and whether that caused any alarm or that nobody
knew about it. She only said that it was her first child and that she
was still a learner at school. Eventually she testified that the
baby, when born, fell on the ground. She vehemently denied that she
caused the head injury to the child and remained adamant that the
baby did not cry or move and she believed it was dead. Because of
that she carried the baby to a tree 94 paces away, according to the
sketch plan, where she buried it. She also denied that she had any
object with her to cut the umbilical cord and said she did not know
how it became severed. In respect of the burial she buried the baby
on it stomach face down and covered it partly with sand. That
concluded the defence case.



[9]
I find the accused’s story not plausible. For an innocent girl
with such a traumatic experience, namely to give birth to a first
born under circumstances where she wanted to keep everything quiet,
she seemed very unemotional and calm in Court. She denied that she
had the intention to kill the baby and remained adamant that the baby
was dead and therefore she buried, what she believed, was a dead
body. Without the concessions made by the doctor, who conducted the
post
mortem
,
and only relying on her evidence, I would not be persuaded to believe
her version. However, she was the only person present who could
relate what occurred the night of 21 or 22 August 2003. Her version
as is corroborated to a large extend by concessions made by the
doctor during cross-examination Although he found a head injury to
the baby at the
post
mortem

examination, he conceded the possibility that this injury could have
been caused when a baby drops from a standing woman at childbirth to
the ground. This coincides with what the accused said. The doctor
also conceded that the baby may have given its first breath and was
consequently alive, as he found, before the head injury. In the light
of the expert evidence, which too a large extent corroborates that of
the accused, I cannot find that she had the intention to kill of the
baby, i.e. that
dolus
directus

was proved. That is not the end of the matter. The next grey issue is
the “cut” of the umbilical cord. Although the doctor initially
observed and noted on the back of the form that the umbilical cord
was “cut”, he later said it was not clinically “cut” as in a
hospital, but severed. This cord would also not have prevented the
infant from falling on its head. With regard to the prevention of air
to the lungs by the clotting of the airways by sand, the doctor
conceded this was possible with the covering of the baby with sand. I
enquired from the doctor about the trachea and throat which he found
clotted with sand, even if there was sand in the baby’s mouth, but
the doctor said in such a small baby the distance between the mouth
and trachea is so small, that it does not play a role. It can also
not be excluded that the baby being buried in that position with its
face down might still have inhaled sand causing the asphyxiation.
Again I believe that intention had not been proved in respect of the
asphyxiation.






[10]
The question is now whether the State has proved that the accused
was responsible for the death of the baby. Ms Jacobs suggested that
if I cannot find that intent to commit the crime of murder had been
proved, the accused was still guilty of culpable homicide, in that
she negligently caused the death of the baby.





[11]
It seems common cause that the baby was alive when born. Although
the accused seems to deny it, it is clear that Mr Bondai accepted it
as proved by the questions put to the doctor and the fact that he did
not dispute the doctor’s evidence that the baby was alive when born
when the lungs fluctuated in water. However, Mr Bondai’s argument
was that the baby was born head first and then breathed. The doctor
conceded that possibility. Then the baby fell to the ground and the
head injury which might have caused its death occurred. I believe
that the accused was negligent. She apparently kept her pregnancy
quiet. She might have had a motive for that, but she did not take the
Court into her confidence in that regard. With the incident of the
birth as described by the accused, namely that the baby was
unexpectedly born and fell on its head, I cannot believe that any
reasonable person, or mother for that matter, would not immediately
pick up the baby and run to her aunt to solicit help. She has no
medical experience and was certainly not equipped to determine that
the baby was dead. She was negligent not to obtain medical or other
assistance. She then decided to bury the baby which she believed had
died, but could possibly have saved its life. The baby also died of
asphyxia and must have been alive at that stage. She was negligent
also in this conduct.





[12]
When I view the accused’s conduct against the elements of the
offence of culpable homicide, I have no doubt that the State proved
the accused has committed this offence. The elements of this offence
are the negligent killing of another person. When applying the test
of a reasonable man, or in this instance a reasonable pregnant
female, the conduct of the accused falls far short. I have no doubt
that, on the evidence before me, the accused ought to have forseen
that her conduct could cause the death of her baby and that she
should have taken measures to guard against it.





[13]
In the circumstances the state has proved beyond reasonable doubt
that the accused is guilty of culpable homicide and she is convicted
of that offence on the first count.





[14]
The accused has already been convicted on the second count, namely
concealment of birth.














___________



MULLER,
J











































On
behalf of the State: Ms H. Jacobs





Instructed
By: Office of the Prosecutor-General








On
behalf of the Defence: Mr G. Bondai





Insyructed
By: Directorate of Legal Aid













































CASE
NO.: CC 14/2007





IN
HIGH COURT OF NAMIBIA








In
the matter between:








THE
STATE











and











ESTHER
KAULINGE











CORAM: MULLER,
J











Heard
on: 18 April 2007








Delivered
on: 19 April 2007









SENTENCE






MULLER,
J.:

[1] The accused was convicted of culpable homicide on count 1, for
the negligent killing of her newborn baby and on the second count for
concealment of birth.






[2]
The accused does not have any previous convictions and Mr Bondai
made submissions from the bar in respect of mitigation. He submitted
that the personal circumstances of the accused should be considered
and listed them as follows:




  • She
    has a clean record;



  • She
    was only 20 at the time of the offence;



  • She
    has been arrested on the same day, namely 22 August 2003 and was
    held in custody for approximately 4 months;



  • She
    was previously a scholar at Namcol and is presently a waitress
    earning N$350.00 per month;



  • She
    is part of 13 children and contributes to the support of 5 children
    from her salary;



  • It
    is an offence that will not be repeated, because she has learned a
    lesson from it.







[3]
Mr Bondai also made certain submissions in respect of the second
conviction, namely the concealment of birth and indicated that it was
irrational and not pre-meditated conduct that was bound to be
exposed. He suggested that the accused should be sentenced to a short
term custodial sentence of approximately 18 months, of which a part
should be suspended. With regard to the second conviction he
suggested that it being the result of one culpable homicide incident,
it should he taken together with the sentence on the first conviction
for the purpose of sentence.





[4]
Ms Jacobs on behalf of the State reminded the Court that although
the accused was only convicted of culpable homicide on the first
count, it is still a serious offence and that the life of a human
being was ended through the conduct of the accused. She further
pointed out that the Court should not only have regard to the
personal circumstances of the accused, who did not show any sign of
remorse, but that the interest of the community should not be
forgotten. She requested the Court to impose a sentence that would
send a message to the community that this type of offence would not
be tolerated. An appropriate sentence would be one of 3 years of
imprisonment, of which the Court may suspend part of it. With regard
to the taking together of the two convictions for the purpose of
sentence, she agreed with Mr Bondai that it would be appropriate
under the circumstances.






[5]
In considering what an appropriate sentence for the accused should
be, the Court considers the elements of retribution, prevention,
deterrence and reformation or rehabilitation and attempts to
incorporate a combination thereof in the sentence to be imposed.
Furthermore, a balance of circumstances relating to the accused, the
crime and society, coupled with a blend of mercy, is the aim that
should be achieved by an appropriate sentence. (
S
v Zinn

1969 (2) SA 537 (A) and
S
v Rabie

1975 (4) SA 855(A)).






[6]
I have considered the personal circumstances of the accused, as well
as the seriousness of the offences and the interest of the community.
It must never be forgotten that the accused was convicted of the
negligent killing a human being. Although the accused was young at
the time, and even when all her personal circumstances are accepted,
her culpable homicide conduct prevented a human being, that was
alive, to grow up and live his life. I cannot believe that society
would tolerate this kind of conduct and would expect this Court to
express its indignation of such a deed through it sentence. The
sentence that I intend to impose would be a balanced result of all
these interests.





[7]
I have no doubts that a balanced sentence for this type of conduct
of which the accused have been convicted on count 1 would entail a
custodial sentence. Although the length may differ with what has been
suggested, even Mr Bondai agreed that the accused should be
imprisoned. I also agree that the second conviction should run
concurrently with the sentence on count 1’s conviction.





[8]
The accused is sentenced as follows for the two convictions:






a) Conviction
on culpable homicide:






The
accused is sentenced to 5 years imprisonment of which 2 years are
conditionally suspended for a period of 5 years, namely that the
accused is not convicted of the offence of murder or culpable
homicide within the period of suspension.”







b) Conviction
on concealing the birth of a child in terms of section 7 (1) of
Ordinance 13 of 1962, as amended:





“The
accused is sentenced to a period of imprisonment of 6 months, which
sentence will run concurrently with the sentence imposed for culpable
homicide.”















__________



MULLER,
J









ON
BEHALF OF THE STATE: MS H. JACOBS











INSTRUCTED
BY: OFFICE OF THE PROSECUTOR-GENERAL














ON
BEHALF OF THE DEFENCE: MR G. BONDAI











INSTRUCTED
BY: DIRECTORATE OF LEGAL AID