Avelino v S (CC 06/2003) [2010] NAHC 71 (06 April 2010);

Group

Full judgment

CASE NO.: CC 06/2003

IN THE HIGH COURT OF NAMIBIA

In the matter between:


ELIA AVELINU APPLICANT


versus

THE STATE RESPONDENT

CORAM: SIBOLEKA, J

Heard on: 16 March 2010
Delivered on: 06 April 2010

APPLICATION FOR LEAVE TO APPEAL: JUDGMENT
SIBOLEKA, J:
[1] This is an application for leave to appeal against conviction and sentence in respect of the first applicant only.

[2] There were originally (6) six accused indicted in the Court a quo on this matter and at the end of the trial accused 1, 2, 3 and 5 were convicted and sentenced accordingly.

[3] On the file the convicted accused lodged handwritten applications for leave to appeal which do not bear the stamp of the Registrar and neither was the receipt of these applications acknowledged by that office in order for this Court to ascertain whether they had applied in time or not. The first applicant’s name appeared on the copy of the Prison Service’s appeal register (for prisoners) and had a stamp of the Registrar on it showing that he has applied in time. On that basis I decided to proceed with the application of accused no. 1 only.

[4] For purposes of this judgment I shall refer to the applicants collectively as accused and individually by means of the numbers allocated to each of them in the Court a quo.

[5] The six accused are charged on four counts of the indictment. The first count is of murder, namely, that on the 10th May 2002 at or near Peoples Inn Bar and Gambling House no. 2 in the Windhoek District the accused unlawfully and intentionally killed Andreas John Nghatanga, a male person.

[6] Count 2 charges the accused with robbery in aggravating circumstances, in that on the said date and at the said Gambling House no. 2 in the district of Windhoek the accused unlawfully and with intent to force them into submission, assaulted and threatened to assault Markus Shifena and/or Salom Walenga and other witnesses present by striking and pointing firearms at them and, unlawfully with intent to steal did steal N$44 000.00 and one shotgun, the property of or in the lawful possession of the said People’s Inn Bar, Gambling House, no. 2
and/or Martin Shifena and/or Salom Walenga and/or Matheus Mundjamina. And that aggravating circumstances as defined in Section 1 of Act 57 of 1977 are present in that the accused and or an accomplice were, before/after or during the commission of the offence, wielding a firearm or any other dangerous weapon or inflicted or threatened to inflict grievous bodily harm.

[7] Count 3 alleges robbery in aggravating circumstances, in that on the 19th of May 2002 at or near Peoples Inn Bar, Gambling House no. 2, in the district of Windhoek, the accused unlawfully, with intent to force him into submission, assaulted Andreas John Nghatanga by shooting him in the chest with intent to steal and took from him one makarov pistol no. 4785 and one cell phone, the property of or in the lawful possession of the said Andreas John Nghatanga.

[8] And that aggravating circumstances as defined in Section 1 of Act 51 of 1977 are present in that, accused 1 and or accomplices, before or after or during the commission of the offences was wielding a firearm or any other dangerous weapon, inflicted or threatened to inflict grievous bodily harm.

[9] Count 4, charges all the accused with defeating or obstructing, or attempting to defeat or obstruct the course of justice, in that between the 19th of May 2002 and the 19th of June 2002, at or near Windhoek wrongfully and unlawfully with intent to defeat or obstruct the course of justice, set the shotgun no. 01/09/1711 alight, that thereafter the accused buried its remains because they foresaw the possibility that the firearm might link them to the commission of the crimes set out above in counts one to three, and/or that the firearm might be used as evidence in a prosecution against them.

[10] In the alternative to count four, it is alleged that between 19 May 2002 to 19 June 2002 the accused did unlawfully, intentionally and maliciously damage a firearm, the shotgun mentioned above, the property of Matheus Mundjaniva and / or Salom Walenga by setting it alight and/or burying the remains thereof, that the said shotgun was the property of or in the lawful possession of Matheus Mundjaniva and / or Salom Walenga and / or Martin Shifena. The accused persons pleaded not guilty, ie each in turn denied all the counts.

[11] The summary of material facts in the State’s case is that the five accused persons set up a plan together to go and rob the patrons of the Peoples Inn Bar, Gambling House no. 2 which is situated in Katutura, Windhoek, that it was also part of the plan to use firearms in the course of the robbery; that on the night of the 19th of May 2002, the accused persons, some of whom were armed, entered the premises of the nightclub, and by using violence and threats of violence stole N$44 000.00 in cash and a shotgun. At the same time the accused persons also shot and killed the deceased and stole a makarov pistol and cell phone, that after the robbery the accused persons set the shotgun on fire and buried its remains as they feared that it might link them to the commission of the crimes or might be used as evidence in the prosecution against them. By burying the said remains of the shotgun the accused persons thus damaged it.

[12] This application was heard on the 16th of March 2010. Mr. Nduna appeared on behalf of the Prosecutor-General and Ms. Hamutenya for

Accused no. 1. Ms. Hamutenya has cited some grounds in support of her case in this regard. I did not quote each of them in full, but briefly summarized them as follows:

CONVICTION
That the learned Judge misdirected herself when she found that the N$150,00 paid for electricity by accused no. 1 and which was in one Namibian Dollar coins was connected to the robbery at People’s Inn, Gambling House no. 2 when in actual fact they were obtained from the accused’s legitimate business (his snooker table and the taxi he operated).
It was also a misdirection, so argued Ms. Hamutenya, to connect one Namibian Dollar coins used by someone else in another incident to buy autumn harvest liquor bottle.
That it was not correct that Saara Sakeus heard the people in her residence mentioning the name of accused no. 1 on the 19th of May 2002 because this only happened the previous day.

VIOLATION OF A TERM OF AGREEMENT IN RESPECT OF TAXI
That the learned Judge erred in law and on the facts when she regarded as sufficient evidence accused no. 1’s failure to return the taxi to his employers Messrs. Petrus Hamupembe and Brothers. The reason for this is that there was no evidence as to whether it was a regular violation or a single incident.

APPLICANT’S WARNING STATEMENT
This statement was disputed on two grounds, being that accused no. 1.’s constitutional rights were not explained to him and that the said statement was not made freely and voluntarily.
It will suffice to mention here that I am agreeable with the fact that accused no. 1.’s rights to legal representation were not properly explained to him by the police officer. At page 972 of the record of proceedings in the Court a quo the investigating officer Inspector Unandapo said:

“My lady he informed me that he wanted a lawyer but then he does he did not have money and that he was willing to tell me what he knows”, my own underlining.


It is my view that at the point where accused 1 said he did not have money to pay for a lawyer, what follows thereafter is as a result of the fact that the availability of Legal Aid facility was not explained to him.
However, this shortcoming did not have a material bearing on the finding of the trial court regarding the involvement of accused 1 in the crimes he has been convicted on.


ALLEGED IDENTIFICATION OF THE BLUE CITI GOLF
According to Ms. Hamutenya although the State witness Johannes Willie Engelbrecht testified about a blue Citi Golf with a white stripe that he allegedly saw leaving the scene recklessly, and into which the last robber carrying banknotes ran into he did not mention this in his statement to the police. According to this counsel, the planting of the blue Citi Golf on the scene because of information provided by Saara Sakeus is a traversy of the law and a failure of justice.

SENTENCE
According to Ms. Hamutenya, the cumulative sentences of 44 and 42 years are very harsh. She says they are life sentences and as such they are disproportionate to sentences another Court would have passed in similar circumstances. She suggested lesser sentences where in the alternative larger parts could be suspended.

[13] I will now examine the evidence of the witnesses connecting accused no. 1 to the crimes he has been convicted on.
In this regard it will not be possible for me to deal with each of the grounds for leave to appeal separately because the evidence covering them is interlinked. I will therefore first deal with the evidence and make my observations at the end.

[14] The State witness in the Court a quo, Saara Sakeus is the girlfriend to accused no. 2 and they have a three year old child. They reside at Ombili, and also staying with them are accused no. 3 and Barnabas Andapo his boy friends’ younger brother.
Their house has two rooms separated by a corrugated iron shack. Barnabas Andapo usually sleeps in the other room. They conduct a small business in the shack where they sell general items such as beer, sugar, cigarettes, sweets, soap and many others.

[15] This witness had known accused no. 1 for one year before this incident. She used to see him at her residence shebeen as the only driver of the blue Citi Golf taxi with a white stripe on the side. She saw this vehicle many times and for about three months (or in the range of three months) it was accused no. 1 who drove it.

[16] On the 18th of May 2002 there were a lot of people at her residence and among these were accused 2 and 3 (inmates) of her residence. The two accused were latter joined by accused 5 and 6. Accused no. 1 came there alone driving a blue Citi Golf with a white stripe on the side. He joined the four accused whom he found already there, the latter left alone in the said taxi.

[17] The four accused just sat there busy discussing, asking each other the where about of accused no. 1. They sat there discussing for quite a long time. This witness could not hear what the rest of their discussion was, because she had to leave them every time to go and prepare some food. The four accused stayed at her residence persuing their discussion until 24h00 and they then left on foot. There were no drinks involved for the whole duration of their lengthy discussions.

[18] When the four accused left her residence, they told her they were going to town and she remained behind with her child and Barnabas Andapo. They later went to sleep, she with her child in her room and Barnabas also went to the other room where he usually sleeps. At 05h00 in the morning while the witness and her child were sleeping, Barnabas entered their room to sleep there as well. On being asked why, Barnabas just said he had been instructed to leave the room, but did not say who ordered him to get out of his usual sleeping place. It came to this witness’s mind that no one else could enter their residence at night while they are asleep and issue an instruction that Barnabas should come and sleep in her room other than no. 2, her boyfriend and elder brother of Barnabas.



[19] This witness, while in bed, heard the accused talking and walking about in that room. She did not go there to see who they were and latter when she could not hear them talking or moving about in the said room, she concluded that they had left the premises.

[20] In the morning she heard a knock on her door, she woke up and found that it was accused no. 2 and 3. She asked them where they were and no. 2 told her they went to the river to drive a bit and to go and bury the gun they took from a security. The witness went to a place where she was selling and there no. 3 came and put his carry bag on the counter and took out N$17,00 (one Namibia Dollar coins)from a bank plastic bag, and bought a bottle of Autumn Harvest. This witness was also standing at the counter and in the accused’s handbag she saw many more bank plastic bags containing coins in no. 3’s carry bag. No. 3 stood there at the counter and drank his beer, and when he finished he left. He later came back and told her he went to Klein Windhoek to exchange his money at a German shop.

[21] Later no. 2 came to the shop and instructed this witness to go and make food for them (no. 2 and 3) before they left for somewhere. However no. 3 suggested it was already too late, they should go without eating. It was about 11h00 in the morning and they left for the North. No preparation was made for the trip and this witness felt a bit sad, because they did not tell her why they were going there.

[22] After no. 2 and 3 had left for the North, no. 6 arrived at this witness’s residence. He bought some drinks and enjoyed himself there. When this witness was shown exhibit no. 9 photo no. 15, she said the vehicle on the photo looked like the vehicle that she knew and saw many times driven by accused no. 1.

[23] Barnabas Andapo was also a State witness in the Court a quo. It is interesting to note that before this witness was declared off trial he testified that on the 19th of May 2002 he was still staying in one house with his elder brother, no. 2 and Saara Sakeus. According to him he slept on the floor and Saara on the bed in one room during the night of the 19th of May 2002.

[24] It is my considered view that it is very rare (if not unusual) for a male person to sleep in one room with his brother’s girlfriend. It is even more unusual for such a thing to happen in the absence of the lady’s boyfriend like it is said to have been the case in this matter. Therefore, I am persuaded to accept that Saara Sakeus correctly thought in her mind that the only person who could enter their residence at night and order Barnabas to leave (vacate) his sleeping room and come over to sleep in her room was her boyfriend, accused no. 2.

[25] Petrus Amupembe is the lawful owner of the blue Citi Golf. He confirmed in the Court a quo that up to the day of the incident on the 19th of May 2002 accused no. 1 was still in his employment as the driver of the said taxi, registration no. N32 050W. According to this witness accused was instructed to park this taxi between 20h00 and 21h00 every evening, and was not allowed to drive it outside Windhoek. The witness recognized his blue Citi Golf in Court on exhibit G, photo no. 15.

[26] Stephanus Paulus testified in the Court a quo that he supplies electricity from his house to the shebeen owned by accused no. 1, and therefore he knows him very well. According to this witness on the 19th of May 2002 at 10h00 in the morning accused no. 1 came to him to pay his electricity bill and he paid N$150,00 (one hundred and fifty Namibian Dollars) all this amount was in the denomination of one Namibian Dollar coins.

[27] Johannes Willie Engelbrecht was with a female friend Leonie Rudath at Club Independence on the evening of the 18th of May 2002 at 21h00. From here they went to the Peoples Inn where according to him beer was cheaper. They sat at the counter and at some stage they also played pool. He saw Andre Matjiedt, another unknown person and a police officer who was playing jackpot.

[28] While sitting at the counter he saw three persons coming in, they ordered beers and when they finished drinking they went outside. This witness saw three persons coming in again, but he is not sure whether they were the same people whom he initially saw coming in, ordering beers and drinking there inside, after which they went out.

[29] When the three men entered the shop for the second time, they closed the door telling everybody to lie down flat on the floor and that the one who will lift up his head to look at them will be shot at. The one who gave the order was swinging a firearm around, the second man was also armed. The third had a protter similar to the one used to shock animals entering a cruchpen for treatment.

[30] It happened very fast, two to three minutes later a shot went off and the police officer (John Nghatanga), who continued to play the jackpot after the order to lie flat on the floor fell on top of this witness and Matjiedt lying next to him. The three men were then taking money and the witness heard the noise of falling money without specifying the denomination thereof. Common sense dictates that it is only coins that make a noise when they fall and land on a cement floor.

[31] However, Leonie Rudath who was with Johannes Willie Engelbrecht testified in the Court a quo that as she lay down she heard a gunshot, then foot steps up and down as well as money which was falling down, coins.

[32] Engelbrecht testified that the robbers started to run out of the shop stepping or running (on top of) Engelbrecht and Matjiedt. Most certainly the robbers also ran over (on top of) the deceased who fell on top of the two men. This witness testified that he was the first to stand up and run out of the shop. According to him, although the light on the stoop was on, but was not as bright as it should be, he clearly saw the last robber carrying a whitish colour cotton bank bag in his right hand from the scene, getting into the already moving blue Citi Golf with a white stripe on its down side.

[33] The witness went back into the shop and saw some one Namibian Dollar coins next to the feet of the deceased. The deceased had an empty brown pistol holster on his side. In my view this is most probably the gun no. 2 told Saara Sakeus, that they took from a security guard that same night and buried it in the river.

[34] In assessing Salom Walenga’s evidence the trial Court made the following observations regarding accused 1‘s involvement:

‘... the witness does not directly refer to accused 1, this witness’s evidence is very crucial ... in that he describes the events that happened within the People’s Inn Bar during the course of the robbery. That evidence shows, in my view, the planning, the quick arrival and the quick get away of the robbers. Clearly accused 1 must have facilitated the plan and the execution of the offences by being available, by furnishing the means of getting there and getting away as quickly as possible.”


[35] On his part accused 1 denied that he was present at all at the scene of the commission of the crime. According to him he slept at his home in Windhoek that night. This falls far too short to the answer demanding connections that the above witnesses have surfaced against him. From my own assessment of the evidence of the State witnesses above, I am in accord with the trial Court’s verdict on accused 1 and I find no warrant for disagreeing with it.

[36] In conclusion the trial Court’s finding in regard to accused 1 is as follows:

“On assessing the accused’s evidence and his explanation, the failure to challenge Mr. Hamupembe’s evidence makes it difficult not to come to the conclusion that accused 1 was indeed part and parcel of the robbery that night, ... other than to observe that he was present although he did not himself participate in the actual

robbery. The evidence entitles the inference that he furnished the get away vehicle and subsequently participated and shared in the proceeds of the robbery in which at least two of the accused persons, who participated in the robbery are said to have been armed at the time. Accused 1 must have been and, was fully aware that there was a crime to be committed with the use of weapons or a weapon to subdue the patrons of the Gambling Bar.”

[37] To sum up, on the 19th of May 2002 accused no. 1 was still in the employment of Festus Hanoshike Hamupembe as the lawful driver of the blue Citi Golf with a white stripe (registration no. N32 050W). Accused no. 1 did not return the taxi to his employers at 21h00 that night despite the fact that this was a term of his contract. Neither did accused 1 account for the takings of that day.

[38] Saara Sakeus who had known accused no. 1 for one year and used to see him driving the said taxi for three months saw him driving in at her residence (shebeen) that night. Accused 2, 3, 5 and 6 were already there busy in a lengthy discussion without any drinks despite the fact that this witness’s residence is a refreshment outlet. In the middle of the night The People’s Inn, Gambling House no. 2 was robbed of among other things N$44 000,00 (forty four thousand Namibian Dollars, all in one Namibia Dollar coins). The last robber was seen by Johannes Willie Engelbrecht leaving the robbed premises carrying a whitish colour bank bag in his right hand boarding a then already moving blue Citi Golf taxi with a white stripe on its down side, which pulled off in a reckless manner. On the 19th of May 2002 at 10h00 in the morning accused no. 1 paid his electricity bill with N$150,00 (one hundred and fifty Namibian Dollars) all in one Namibia Dollar coins. Inspector Unandapo found N$400,00 (all in one Namibia coins) on accused 2 and 3 in a bank bag when he arrested them.

[39] It is my considered view that common purpose clearly came to surface when accused no. 2, 3, 5 and 6 in brief attendance of accused 1 held a lengthy discussion at Saara Sakeus’s shebeen without any drinks. When accused no. 1 left before the completion of these discussions Saara Sakeus heard the remaining accused asking themselves where he, accused 1 was. They nevertheless continued until they latter left on foot in the night.

[40] Common purpose as laid down by the then Appellate Division of the Supreme Court of South Africa in State v Safatsa 1988(1) SA 868 is applicable in this matter. This is what the Court said on page 894C-D:

“It is more usual and in my view with respect, more appropriate to deal with the liability of these accused on the basis of what is called in our practice ‘common purpose’ ... This is implicit in the findings of the trial Court, I think but in any event quite clear on the evidence, that each of the accused shared a common purpose to kill the deceased with the mob as a whole, the members of which were intent upon killing the deceased and in fact succeeded in doing so ... All these accused by their conduct actively associated themselves with the achievement of the common purpose and each of them had the requisite mens rea for murder.”


In pursuance of the above practice the Appeal Court at page 984G-H phrased the question that has to be resolved as follows:

“Thus the question that must be faced squarely is this: in cases of the kind commonly referred to in our practice as cases of common purpose in relation to murder, is it competent for a participant in common purpose to be found guilty of murder in the absence of proof that his conduct individually caused or contributed casually to the death of the deceased?” As reflected in the preceeding paragraph this question was answered in the affirmative.


[41] In State v Shaik and others 1983 (4)57AD at 65 A, quoted with approval in Safatsa case the following was said about common purpose:

“Moreover, once it was known that the flat was occupied, the inference that the three men foresaw the possibility that violence might have to be used to overcome resistance ... and that such violence might result in injury or death is an inference that must be drawn.... There is no room for a second reasonable inference which will serve to cast down on the first inference. The speed and the ferocity with which the attack was carried out ... serve to underline the inference that the three appellants entered the flat determined at any price to steal a very big sum of money and foreseeing the possibility of death or serious injury if they used their weapons.”


[42] In State v Malinga and others 1963(1) SA 692 AD at 695 A, also quoted with approval in Safatsa case the Court had the following to say on common purpose:

“In the present case all the accused knew that they were going on a housebreaking expedition in the car, and that one of them was armed with a revolver which had been obtained and loaded for the occasion. It is clear that their common purpose embraced not only housebreaking with intent to steal and theft, but also what may be termed the get-away, and they must have foreseen and therefore by inference did foresee, the possibility that the loaded firearm would be used against the contingency of resistance ... Hence as far as individual mens rea is concerned, the shot fired by accused no. 4 was, in effect, also the shot of each of the appellants. On the question of intention to kill, they must have foreseen and therefore by inference did foresee, the possibility that the use of the loaded firearm would have fatal consequences... And the appellants were clearly reckless whether death would in fact ensue or not.”


[43] I therefore agree with the trial Court’s ruling that accused 1 acted together with accused 2, 3 and 5 and were present and participated in the offences that were committed at the Peoples Bar Gambling House no. 2 on the night or early morning hours of the 18th to the 19th of May 2002.

[44] Ms. Hamutenya referred to various cases decided by this Court on sentence and one of such matters is State v Marius Bezuidenhout and two others, case no. CA 58/1999 delivered on 17 May 1999. In this matter Teek, JP (as he then was) and Hoff, J said the following about an appropriate sentence:

“It is trite that in considering an appropriate sentence courts have regard to various factors such as the personal circumstances of the accused person, the nature of the crime committed, the interests of society and are also mindful of the different aims of punishment namely prevention, deterrence, rehabilitation and retribution. A balanced approach is normally required in this regard. Courts are however justified in certain instances to attach more weight to some aims of punishment or to emphasize one or more factors at the expense of other sentencing considerations.”


[45] Given the prevalence and seriousness of these crimes I don’t find any misdirection regarding sentence on the part of the trial Court.

[46] I have accordingly come to the conclusion that there is no merit in the application for leave to appeal. I am unable to hold that no reasonable Court could have come to the trial Court’s conclusion.

[47] In the result the application for leave to appeal against conviction and sentence is dismissed.



_________________

SIBOLEKA, J




ON BEHALF OF THE APPLICANT: ADV. L. HAMUTENYA

LEGAL AID


ON BEHALF OF THE RESPONDENT: ADV. NDUNA
INSTRUCTED BY: THE OFFICE OF THE

PROSECUTOR-GENERAL

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