Court name
High Court
Case number
CC 42 of 2008
Case name
S v Veiko (Judgment)
Media neutral citation
[2009] NAHC 43





THE STATE v SHITAATALA VEIKO








CASE NO.: CC 42/2008







IN THE HIGH COURT OF NAMIBIA



HELD IN OSHAKATI







In the matter between:







THE STATE











and











SHITAATALA VEIKO







CORAM:
LIEBENBERG, AJ







Heard on: 01
– 03 April 2009; 06 April 2009



Delivered on: 07
April 2009











JUDGMENT



LIEBENBERG,
A.J.:

[1] The accused stands charged with the offence of Murder, read
with the provisions of the Combating of Domestic Violence Act, Act 4
of 2003 in that he on the 1
st
of July 2007 in the district of Outapi unlawfully and intentionally
killed one Wilbard Ndeshipanda Angala (the ‘deceased’).







[2] The accused
pleaded not guilty on the charge but tendered a plea of guilty on
Culpable Homicide, a competent verdict to the charge of murder. The
State declined the guilty plea on the competent verdict and elected
to proceed with the murder charge on the basis that the accused
committed murder with intent in the form of
dolus
eventualis
.







[3] It is common
ground that the accused is a member of the Namibia Defence Force
stationed at Windhoek and that the incident which led to the death of
the deceased took place on the 1
st
of July 2007 at the house of the accused in Eemwandi village near
Outapi. The reason why the accused was in the village was because he
had arrived from Windhoek the previous day to attend a memorial
service of a relative. It is furthermore not disputed that the
deceased died of a single gunshot wound caused by a bullet fired from
the accused’s licensed 9 mm calibre pistol which struck the
deceased in the chest; the deceased having been the brother-in-law to
the accused who resided at the village house of the accused.







[4] There are no
eye witnesses and those witnesses called by the State to testify
about the shooting incident were merely in the vicinity and did not
witness the actual shooting by the accused. They are Amunyela
Kahenge (Junias) the neighbour, a cousin by the name Naambo Amunyela
and the accused’s wife Loide Feni Angala, the latter having no
objection giving evidence for the State.







[5] Junias had spent the night at
the accused’s house and in the morning he and the deceased went to
sit at the traditional fire place also called “oshoto”. The
deceased later on called the accused to join them where after they
had a discussion over a goat until it was time for the deceased and
Junias to fetch the donkeys from the field. It is common cause that
there was no argument or ill feelings between any one of them prior
to the incident and that when Junias and the deceased left, they
parted ways with the accused amicably.







[6] According to Junias after he and
the deceased had left the fire place they went through the gate used
by motor vehicles; at which stage the accused was standing at the
entrance of his bedroom. They had just passed the gate and while the
deceased was walking in front of Junias, he heard a gunshot and next
saw the deceased fall to the ground. The deceased got up but again
fell down and died at the spot.



In cross-examination he explained that
the deceased had reached the gate first and was waiting for him on
the other side of the gate from where they proceeded to the field.
He said the accused’s bedroom where they had left the accused
behind at that point, was situated on their right side.







[7] The witness Amunyela at some
stage that morning, also sat at the fire place but entered the
kitchen before Junias and the deceased left. She only heard the shot
and later on went to where the deceased was lying outside the home
stead.







[8] Loide Angala testified that
after Junias and the deceased went to fetch the donkeys, she and the
accused stood up from the fire place and entered their bedroom.
There the accused removed the firearm from under the pillow; removed
the magazine and went to stand outside, facing the fire place. She
almost simultaneously left the bedroom and was on her way to the
bathroom when she heard a loud sound and thereafter she saw the
accused staggering and falling down on the outside of the fence. She
then alerted the accused to the fact that he had shot the deceased
where after they rushed to where the deceased was lying and noticed
blood on his shirt.



The evidence of this witness
contradicts that of Junias to the extent that she saw him leaving
through the main entrance and not the motor vehicle gate; also that
she did not see him with the deceased the time the latter was
staggering and falling down.



According to this witness the accused
had a clear view of the gate from where he stood at the door of their
bedroom and that he would have seen the deceased on the other side of
the gate, had he been there. The gate referred to is the one through
which motor vehicles enter into the homestead and has two corrugated
iron sheets horizontally positioned, the one above the other,
attached to it. A person of the deceased’s length therefore, would
only be visible from above his shoulders.







[9] Detective
warrant officer Samuel Ambunda is the investigating officer who
visited the scene the day of the incident and after he had introduced
himself to the accused and warned him in accordance with the judges’
rules, the accused directed him to the place where the deceased was
lying under a temporary structure made of sticks and grass. He found
a corpse and next to it, a firearm; a spent cartridge case and the
accused’s firearm licence book. The accused then pointed out where
he stood in front of his bedroom the time the shot fired and where
the bullet hit the bottom half of the corrugated iron on the gate.
W/o Ambunda took photos of the scene where after the accused was
arrested and the corpse taken to Okahau.







[10] When the
accused was formally charged later that same day he made a statement
that was reduced to writing by w/o Ambunda (Exh G). Accused does not
dispute having made the statement but only that part thereof does not
correctly reflect what the accused conveyed to w/o Ambunda namely,
where it reads that after the accused took his firearm he told the
deceased to get away from there; where after the accused took aim at
the place where the deceased was standing; and because he could not
see the deceased, he pulled the trigger and fired one shot into the
corrugated iron. During the recording of the statement w/o Ambunda
himself did the translation from the Oshiwambo language into English
and
vice
versa.








[11] W/o Ambunda
also collected from doctor Sandra Perera a projectile retrieved from
the deceased’s body during a post mortem; which he then handed in
at the National Forensic Institute for examination together with the
accused’s firearm and the spent cartridge case found at the scene.







[12] William
Nambahu is a Chief Forensic Analyst employed at the National Forensic
Science Institute with the necessary experience to examine and
analyse firearms, cartridge cases and projectiles. He received for
examination 1 x 9 mm pistol with serial no. 037704; 1 x 9 mm pistol
magazine; 1 x 9 mm spent cartridge case; and 1 x 9 mm spent
projectile. Upon analysis he found the following: that the pistol
was capable of firing; the spent cartridge case was fired by the same
pistol; and, that the spent projectile could not be analysed because
there were too many “scratch marks” on it and as a result
thereof, no identifiable grooves could be detected on it; therefore
it has no evidential value. The scratch marks on the projectile are
according to Mr. Nambahu, consistent with an instance where the
projectile had made contact with a hard object like corrugated iron.
It is not disputed that the spent projectile found lodged in the
deceased’s body, was fired from the accused’s firearm.







[13] Warrant
officer Jeremia Shipiki is a police officer attached to the Scene of
Crime Unit and he visited the scene on 16 July 2007. After pointing
out was made to him by w/o Ambunda and the accused’s wife, he
compiled a photo plan and the accompanying key thereto (Exh J). From
the point where the shot was fired from up to the point where the
corrugated iron gate is, is a distance of 15,5 m; while the hole in
the corrugated iron is situated 0,65 m above ground level. It is
further common cause that the particular hole in the corrugated iron
was caused by the bullet fired from the accused’s firearm on that
day.







[14] Dr. Sandra
Perera who performed the autopsy had in the meantime returned to her
country of origin and was therefore not available to give evidence on
the post mortem report she had completed. Instead, Dr. Vasin was
called to comment on the report and of interest from his evidence is
to note that the entry wound was on the right front of the deceased’s
body and the trajectory of the bullet was downward and slightly to
the left side. The bullet was lodged in the heart of the deceased.
The medical evidence and the findings noted in the report were also
not disputed.







[15] Accused was
the only defence witness and his evidence prior to the shooting
materially confirms what the State witnesses had said. He said that
Junias and the deceased stood up from where they were sitting at the
fire place in order to fetch the donkeys and the deceased waived him
goodbye before exiting through the main entrance. Accused and his
wife then entered their bedroom where accused took his pistol from
under his pillow; removed the magazine and walked out of the room to
check whether the firearm was safe. He was holding it with the
barrel facing down at an angle of 45 degrees when he accidentally
touched the trigger and a shot fired into the ground with the bullet
thereafter hitting the corrugated iron on the gate. He was unaware
that he had struck someone until his wife brought it to his attention
where after they ran to where the deceased was lying, already dead.
He told his wife to call the police and then built a shelter to
protect the body from the sun.



As stated before,
regarding

the warning statement the accused denied having said certain things
contained therein. He said that when his statement was recorded he
was still in shock and did not read the completed statement himself
before signing it. He said it was however possible that w/o Ambunda
could have translated it to him but that he did not pay much
attention thereto as he was still in shock.



In
cross-examination the accused said that he was uncertain as to
whether there was a bullet in the firing chamber and wanted to check
on it, at which stage he accidentally touched the trigger. It was
pointed out to the accused that his evidence differed from what he
had stated in his plea explanation at the beginning of the trial
namely, that the pistol was on his
side
and
not
under

the
pillow
;
that he
pulled
the trigger compared to
accidentally
touching it; and Junias and the deceased having left through the
corrugated
iron gate

and not the
main
entrance
.
He explained that the statement setting out his plea on a lesser
charge was then not correct as far as it concerns these issues.







[16] The State case entirely rests
on circumstantial evidence as none of the witnesses who testified had
seen the accused firing the pistol. Because it is not disputed that
the accused handled a firearm which discharged a bullet that hit a
corrugated iron and thereafter the deceased, the only issue for
consideration is whether the accused acted with intent or otherwise
and whether he foresaw the consequences of his actions.







[17] From the
evidence of Junias, Naambo and Loide, it is clear that there was no
reason why the accused would intentionally have fired a shot at the
deceased and therefore lacks motive. They had parted ways amicably a
few minutes before when Junias and the deceased stood up to fetch the
donkeys and they thereafter went out of sight of the accused who, in
the meantime, had entered his bedroom where he stayed for a while
before going outside again.



The only incriminating evidence
against the accused thus, is what is contained in the warning
statement taken from him later that day and where he allegedly said
that he told the deceased to move away and where after the accused
fired at where the deceased was standing. Despite the accused
denying having said that or acted in that manner, there is no other
evidence supporting that version. All three State witnesses were
within earshot of the accused and must have heard him telling the
deceased to move away from the gate; especially Junias, who on his
own account, must by then have been between the accused and the
deceased. Yet, no one made any mention thereof and neither were they
asked about it. It is also inconsistent with Loide’s evidence who
had just passed the accused outside their bedroom on her way to the
bathroom as she also did not see either the deceased or Junias at the
gate. She only came to see the deceased after the shot rang out and
by then he was not near the gate. This is confirmed by the photo
plan according to which the deceased fell down 7,4 m from the gate
when struck by the bullet.







[18] As regards
informal admissions contained in the plea explanation of an accused
person it was held that such admissions stand on the same footing as
extra-curial admissions in that they are items of evidence against
the party who made them, but
which
such party may contradict or explain away.

S
v Shivute

1991 NR 123 (HC)



From the present
facts it is clear that, that part of the warning statement which
incriminates the accused was not only disputed by the accused when
giving evidence, but is also inconsistent with the evidence of the
State witnesses. It was submitted by defence counsel that the
statement in itself is contradictory where it reads that the accused
was
aiming at where the deceased was standing
;
while at the same time it reads that the accused
could
not see the deceased.
I
agree.







[19] I
furthermore do not believe that any right minded person in a similar
situation would fabricate evidence to his own detriment in a criminal
case where he faces a charge of murder. In my view, this raises
doubt as to the correctness of the interpretation done by w/o Ambunda
when recording the statement alternatively, whether the accused was
emotionally fit to give a statement at the time. Be that as it may,
the accused in his evidence denied the correctness of these
admissions contained in the statement and also, the proved facts do
not support the self incriminating allegations contained therein. It
therefore carries little to no weight at all.







[20] Junias is
the only person able to describe the exact position of the deceased
immediately before the latter was hit by the bullet however; his
explanation is in more than one respect inconsistent with the
evidence adduced regarding the trajectory of the bullet. This was
conceded by the State. With regard to photos no. 1 and 5 of the
photo plan (Exh J) one is able to see that the point from where the
shot was fired (A); the corrugated iron gate (C) and the point where
the deceased was found (D), are not in a straight line. Junias in
his evidence did not say that the deceased had moved away from the
spot once he was hit, only that the deceased fell down; got up and
again fell down, thus it had to be at point D. According to him they
had walked
away
from
the gate a short distance with the homestead sitting on their right.
This means that they had turned their backs on the gate as they
walked. Now that certainly raises more questions than answers.







[21] Despite the
angle at which the bullet hit the corrugated iron 0,65 m from ground
level it would, according to Mr. Nambahu, have been possible for it
to deflect at an
ascending
angle and hit someone walking beyond that point. That conclusion to
me seems logical but what does not make sense is that once the bullet
penetrated the body of the deceased just below the right side collar
bone, one would not expect to find a
downward
trajectory and the bullet to lodge itself in the heart which is
situated below the entry wound. There is no medical evidence
suggesting that the bullet had hit a hard object like bone and again
deflected after entering the deceased’s body. Furthermore, if they
were walking
away
from
the gate with their backs or right sides facing the gate, how was it
possible that the deceased could have been hit on the
front?
These inexplicable inconsistencies between Junias’s evidence and
the proved facts concerning the trajectory of the bullet certainly
remain a mystery and cast doubt as to the correctness and reliability
of Junias’s evidence on that point.







[22] His evidence
is furthermore contradicted by the witness Loide on two material
aspects namely, that he did not leave through the corrugated iron
gate and was also not seen with the deceased the time the latter was
hit by the bullet. Junias gave single evidence in respect of the
shooting incident and when regard is had to the unexplained
inconsistencies surrounding his evidence, it cannot in my view be
said that his evidence was satisfactory in all material respects.







[23] What remains
to be considered is the version of the accused and more specifically
whether it is reasonably possibly true. It is trite law that no onus
rests on the accused to convince the court of the truth of any
explanation he had given and even if that explanation is improbable,
the court may not convict unless it is satisfied that it is beyond
any reasonable doubt false.
(S
v Difford
1937
AD 370 at 373)



The test is not
whether the court believes the accused’s story but whether it
thinks there is a reasonable possibility that it may be substantially
true.
(S
v Kubeka
1982
(1) SA 534 (W) at 537)



Some discrepancies in the accused’s
evidence compared to his plea explanation were disclosed; however,
all these relate to the events preceding the actual shooting and are
not material to establishing the guilt of the accused.







[24] What the
Court needs to do is to assess whether the State’s case has been
proved beyond reasonable doubt when measured against an accused’s
conflicting version. The approach of the Court should be to measure
the totality of the evidence, not in isolation,
“…but
by assessing properly whether in the light of the inherent strengths,
weaknesses, probabilities and improbabilities on both sides the
balance weighs so heavily in favour of the State that any reasonable
doubt about the accused’s guilt is excluded.” (S v M
2006
(1) SACR 135 (SCA) at 183 h-i)







[25] When
considering the totality of the evidence adduced and with regard to
the discrepancies and improbabilities in the State case, I have come
to the conclusion that the evidence of the accused, although not
perfect, is reasonably possibly true.







[26] The State,
solely relying on the warning statement, submitted that the accused
had the required intention in the form of
dolus
eventualis

and therefore he is guilty of murder. I was referred to Principles
of Criminal Law: Jonathan Burchell (Revised 3
rd
edition) at p. 467 which reads:





In
short, if the accused foresaw the consequences or circumstances in
question not as a probable result of his act but considered that
there was a possibility that they could result (and reconciled
himself to this possibility), he had intention in the sense of dolus
eventualis. On the other hand, if he did not actually foresee, but
as reasonable man should have foreseen, the possibility of the
consequences occurring, or circumstances existing, he lacked
intention and, at most, will have been negligent. The view that
foresight of the possibility of the consequences resulting from an
accused’s act is sufficient for dolus eventualis is now firmly
established in our law.”







[27] When
applying the aforementioned approach to the facts
in
casu
I
am convinced that the State failed to show beyond reasonable doubt
that the accused acted with intent in the form of either
dolus
directus
or
dolus
eventualis
and
that he is guilty of the offence of murder. What (at most) has been
established (and admitted by the accused), is that he had acted
negligently as a result whereof a person had died.







[28] The accused
at the beginning of the trial tendered a plea of guilty on the
competent verdict of culpable homicide and in a statement prepared in
terms of section 112 (2) of the Criminal Procedure Act, Act 51 of
1977, he admitted all the elements of that offence.







[29] Culpable
homicide is the unlawful, negligent causing of the death of another
human being.
(Snyman:
Criminal Law
Second
Edition at p.428)



The accused admitted the following:




  • That he caused the death of another
    person namely Wilbard Ndeshipanda Angala;



  • That he was negligent when he pulled
    the trigger of his firearm as he had failed to conduct a proper
    examination when checking the firing chamber of the firearm to
    ensure that there was no live bullet lodged in the chamber before
    pulling the trigger;



  • That the deceased died as a result of
    his negligent actions.




The admissions made by the accused
clearly satisfy the definition of culpable homicide.







[30] The
negligence of the accused lies in the fact that he failed to ensure
that the firearm was safe before firing it, albeit intentionally or
accidentally due to his negligent handling of the firearm. The shot
was fired within the home stead where a number of people were present
and moving about; and when these circumstances are subjectively
considered; I am convinced that the reasonable man in these
circumstances would have foreseen the possibility of the firearm
discharging and that he would have acted differently, by taking
precautionary measures to prevent such possibility. Thus, the
accused failed to do what could and should have been done to prevent
the occurrence of death. He therefore stands to be convicted
accordingly.







[31] Although the
accused was charged with the offence of murder read with the
provisions of the Combating of Domestic Violence Act, Act 4 of 2003,
it was conceded by the State that the said act does not find
application to the facts of this case, except for the accused and the
deceased having been related through marriage on his wife’s side
and them staying in one house.







[32] In the
result, the Court finds the accused on the charge of:





Murder – Not guilty



I.t.o.
Section 258 Act 51 of 1977: on the competent verdict of Culpable



Culpable Homicide - Guilty



















______________________________



LIEBENBERG, A.J.



















































ON BEHALF OF THE STATE
Adv. R. Shileka







Instructed by: Office
of the Prosecutor-General











ON BEHALF OF DEFENCE Ms.
E.T. Ndalulilwa





Instructed by:
Lorentz
Angula Inc.