Criminal law

The State v Claasen & Ors (CC 12/2018) [2020] NAHCMD 82 (09 March 2020);

Flynote: 

Criminal law – Private defence – Accused no 2 said that whilst wrestling for possession of the firearm a shot accidentally went off – Accused further narrates that shot went off because deceased had finger on the trigger whilst barrel of firearm pointing to his abdomen –– Expert evidence established that it is impossible for the deceased to hold one finger on the trigger whilst the rifle was pointed at the deceased’s abdomen – Evidence of expert not rebutted.

Criminal law – Private defence – Version proffered self-contradicting – Contradiction between plea statement and testimony of accused no 2 regarding shooting incident – Irreconcilable versions - Accused shown to be misleading the court – Unreliable witness – Considered in totality of evidence – Private defence rejected.

Criminal law – Housebreaking with intent to rob and robbery with aggravating circumstances – Charge relates to breaking in of deceased’s farmhouse – Accused admitting intending to take deceased’s property as compensation for lost income – Accused had to kill deceased in order to take property – Elements of robbery require causal link between the violence and the taking of property –– Causal link between the killing of the deceased and taking of property established.

Criminal law – Housebreaking with intent to rob and robbery with aggravating circumstances – Accused raised defence of necessity – Accused persons allege to having been coerced to take deceased’s property by co-accused – Court to look at all facts in deciding whether accused persons satisfied defence of necessity – Evidence support defence of necessity in respect of one accused partly and fully in respect of another accused – Accused knew property was stolen and made him guilty of theft.

Criminal law – Robbery with aggravating circumstance – Charge relates to robbing of truck belonging to deceased – Accused abandoned vehicle – Abandoning of stolen property with reckless disregard for whether it will be found or not constitutes theft – Accused guilty of robbery.

Criminal law – Robbery with aggravating circumstance – Accused assisted co-accused to remove stolen property from farm – Accused not involved in act of robbery himself – Actions of accused amounts to accessory after the fact.

Criminal law – Contravention of section 83(2) of the Road and Transportation Act 22 of 1999 – Use of motor vehicle without owner’s consent – Ambit of act wide to include a passenger in a vehicle – Question whether accused as passenger acted out of necessity when boarding vehicle – Evidence established accused acted out of necessity as she had no choice but to board vehicle with co-accused.

Headnote and Holding: 

On 19 October 2015 the deceased was murdered on his farm and his property stolen. As a result of the incident three accused persons who worked for the deceased were charged with eight counts, including and amongst others, murder, housebreaking with intent to rob and robbery, defeating or obstructing the course of justice and use of a motor vehicle without the owner’s consent. Accused no’s 1 and 3 pleaded not guilty on the basis that they acted out of duress. On the other hand, accused no 2 pleaded guilty to counts, 5 (use of motor vehicle without the owner’s consent), 6 (defeating or obstructing or attempting to defeat or obstruct the course of justice), 7 (possession of firearms without a licence) and 8 (possession of ammunition). However on the remaining counts he pleaded not guilty and raised private defence.

Held, that, with regards to the circumstances that led to the firing of the first shot, there is no evidence rebutting the evidence of the expert that it would have been impossible for the deceased to hold one finger on the trigger whilst the rifle was pointed at the deceased’s abdomen during the struggle for possession.

Held, further that, there is a material contradiction between accused no 2’s plea explanation and his testimony regarding his actions during the shooting incident. Accused found to be unreliable witness rendering his defence of private defence to be false and rejected.

Held, further that, accused no 2 had the intention earlier on to steal the property of the deceased and in order to do so he had to overcome any resistance the deceased may put up. Therefore the offence of housebreaking with the intent to rob and robbery had been proved because a causal link between the killing of the deceased and the taking of the property had been established.

Held, further that, in order to decide on the defence of necessity, the court has to look at all the facts of the case.

Held, further that, whilst evidence may support a defence of necessity up to the stage where the goods were loaded onto the truck nothing showing that whatever transpired thereafter was done under duress. Therefore, accused no 1 knew property to have been stolen and made him guilty of theft. As for accused no 3 the offence of theft not proved.

Held, further that, although accused no 1 was not part of the robbery itself his actions satisfy the definition of an accessory after the fact by facilitating accused no 2’s evasion of liability.

Held, further that, the ambit of section 83 (2) of the Road and Transportation Act 22 of 1999 is wide enough to include a passenger in a vehicle. The court is of the view accused no 3 acted out of necessity when she boarded the truck.