S V Kock (CC 07-2012) 2015 NAHCMD 154 (30 June 2015)

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

Case No: CC 07/2012

THE STATE versus

ERWIN KOCK

Neutral citation: S v Kock (CC 07-2012) [2015] NAHCMD 154 (30 June 2015)

Coram: SHIVUTE, J

Heard: 18 – 30 September 2013; 5 November 2013; 21 January – 6 February 2014; 23 April 2014; 10 – 19 March 2015 and 21 April 2015

Delivered: 30 June 2015

VERDICT

1st Count: Not guilty of murder but guilty of assault with intent to do grievous bodily harm. 2 2nd Count: Guilty of rape contravening s 2(1)(a) read with ss 1, 2, (2) and 3 of the Combating of Rape Act 8 of 2000.

3rd Count: Guilty of robbery with aggravating circumstances as defined in s 1 of Act 51 of 1977.

JUDGMENT

SHIVUTE J:

[1] The accused faces an indictment containing three counts namely: Murder, contravening s 2(1)(a) read with ss 1, 2, (2) and 3 of the Combating of Rape Act 8 of 2000 – Rape and robbery with aggravating circumstances as defined in s 1 of Act 51 of 1977.

[2] Count 1: Murder

It is alleged that during the period 2 – 3 October 2008 and at or near Keetmanshoop in the district of Keetmanshoop the accused unlawfully and intentionally killed Rebecca Isaaks, a female person.

Count 2: Rape

It is alleged that during the same period as mentioned above in the same district at the same place, the accused did unlawfully and intentionally commit a sexual act with Rebecca Isaaks by inserting his penis and/or other part of his body and/or an object into the vagina and/or mouth of the complainant under the following coercive circumstances:

1. By the application of physical force to the complainant; 3

2. By threatening the complainant and/or another person with the application of force; and/or

3. Where the complainant is unlawfully detained; and/or

4. Where the complainant is affected by physical disability or helplessness, mental incapacity or other inability, and/or intoxicating liquor or any drug or other substance which mentally incapacitates the complainant and/or sleep to such an extent that she is rendered incapable of understanding the nature of the sexual act or is deprived of the opportunity to communicate unwillingness to submit or to commit the sexual act.

Count 3: Robbery with aggravating circumstances as defined in s 1 of Act 51 of 1977. It is alleged that during the same period, in the same district at the same place the accused did wrongfully, unlawfully and intentionally force Rebecca Isaaks into submission and assault her by hitting her with an unknown object on her head and stabbing her with an unknown object on her vagina and with intent to steal take from her goods namely: grey and red bag, multi colored blanket, 2 cream colored curtains, 1 green t-shirt, 1 black bra, 1 brown underwear, red and orange scarf and multi colored panty. That aggravating circumstances as defined in s 1 of Act 51 of 1977 are present in that the accused and/or an accomplice was/were before, during or after the commission of the crime wielding a dangerous weapon and/or inflicting grievous bodily harm to the said Rebecca Isaaks.

[3] The accused pled not guilty to all counts. Mr Isaacks counsel for accused placed it on record the accused did not kill the deceased or rape her or rob her. However he made admissions in terms of s 220 Act 51 of 1977 as to the identity of the deceased; the content of the post-mortem report excluding the cause of death; that the deceased’s body did not sustain any further injuries or wounds during the transportation to the mortuary; the proceedings in terms of s 119 Act 51 of 1977; the content of the photo plan and the key to the photo plan compiled by Constable Fredericks; the content of Pol 16 marked as A28, and the property as listed in count 4 3. It was admitted that such property was found in the accused’s possession at the time of his arrest.

[4] The accused disputed the content of a warning statement on the basis that he was not informed of his rights to legal representation, more specifically he was refused the opportunity to exercise his right to apply for legal aid and the right to remain silent was denied to him

[5] Bernice Cornelia Isaaks, a niece to the deceased, testified that she was residing with the deceased. On the fateful day being 2 October 2008 between 02h00 and 03h00 she woke up and saw a man standing at the stoep. She peeped through the window and observed that the man was searching through a purse. She inquired from the man what he was doing and the man replied that he was just looking. They communicated in Afrikaans but she could tell that the person was Nama speaking from the accent. The man went into her aunt’s room. The witness left her room and told the man to leave. The man went to the corner of the stoep picked up goods and went to the gate. She observed that the man was carrying the deceased’s bag and a red blanket with triangles. She gave a description of the man she saw as a Nama speaking boy light in complexion and he was wearing a green t-shirt with white letters written on it. The man was lowering his head whilst he was heading to the entrance and left.

[6] The witness called the deceased. However, there was no response. She entered the deceased’s room. She checked the deceased’s arm; it was stiff and cold. She called other members of the family. They realized that the deceased was no more. The witness was able to see the man because of the light that was shining from New Start Centre. The light was shining at the stoep. The witness later on the same day identified her deceased aunt’s goods at the police station namely: a grey bag, a red blanket with multi colors and pictures of triangles on it, bras, underpants, red and orange hat, scarf, cream curtains and a petticoat.

[7] Sergeant Ruberto Fredericks gave evidence that on the date in issue around 03h00 he went to the scene of crime and met witness Bernice Isaaks. He took photographs of the scene of crime including photos depicting the deceased. He 5 found the deceased already dead. Clothes were lying on the ground scattered all over the room. He found two used condoms. Apart from the photos he took at the scene of crime he also took photographs at the Keetmanshoop Police Station at about 10h00 on the same day. The witness had also drawn a sketch plan on 12 May 2010 where points were indicated to him by one Fatima Kiewiet. The witness had collected used condoms and packets of condoms from the scene and forwarded them to the forensic laboratory for scientific examination. He sent a rape kit which he marked as exhibit “A” with serial No.: 07/N2A0332 for the accused and exhibit “B” with serial No: 07N2A0818 for the deceased. He marked the used condom as exhibit “1” and the packet for the condom as exhibit 2. All exhibits were sealed in a bag with number NFB08504.

[8] Warrant Officer Donald Goraseb testified that he received the exhibits from Constable Fredericks which were properly sealed and submitted them to the laboratory and were received by a certain Mrs Akawa on 24 October 2008.

[9] Constable Erwin Kazavanga’s testimony is that he took the accused for medical examination to Dr Njunguna on 3 October 2008. Kazavanga is the one who opened the rape kit in the presence of the doctor and handed it over to her. She performed her duties on the suspect according to the rape kit and the J88. He sealed the rape kit and later on handed it to Sergeant Fredericks.

[10] Karl Christian Swartbooi testified that on 3 October 2008 at around 07h30 he received a report concerning a murder case. He was given the description of the suspect that he was brown in colour, wearing a green t-shirt with letters typed on it. They went to look for the suspect and whilst they were driving along the road to Luderitz they found three women and a male hitchhiking. The male sat in a squatting position. He stood up. The man was matching the description given to the witness. He arrested, the man and that man happened to be the accused. The accused was informed of the reason why he was being arrested. His right to legal representation, including the right to apply for legal aid and the right to remain silent were also explained to him. The witness spoke to the accused in Afrikaans. The accused did not indicate which right he was going to exercise. The witness asked the three ladies whether the accused had anything with him and the ladies said the grey bag 6 that was standing there belonged to him. The witness checked inside the bag and found pairs of women’s underwear. The accused said the women’s clothes that were in the bag belonged to his girlfriend. The bag with the blanket that was found with the accused was taken along with the accused to the police station. Later on the goods that were found in possession of the accused were identified by Bernice Isaaks as the deceased’s property in the presence of the witness. It was put to the witness that the accused was wearing a green t-shirt but there was no white letters on the back of his t-shirt.

[11] Fatima Lucintha Kiewiet’s testimony is that on 2 October 2008 she saw the accused in Keetmanshoop at Tseiblaagte compound gambling at the place where tombo is sold. At that stage the accused was wearing dirty jeans, dirty blue overall and he also wore a yellowish badge. His hair looked uncombed and untidy. The witness was able to remember the accused because the accused had picked up a quarrel with one of the people he was gambling with. The deceased was also at the place seated slightly opposite another drinking area under a tree. The deceased was very drunk when the witness left the place.

[12] Eric Forster saw the deceased at the place where tombo is sold on 2 October 2008. The deceased was drunk and Bassie called him to assist her. He and Bassie escorted the deceased home. When they were taking her home he and Bassie were holding her under the armpits on both sides to aid her to walk. They took her to her house that was situated near the shebeen. They left her home at the stoep. When they took the deceased home it was during the night.

[13] Joel Stanley Isaaks the deceased’s son testified that on the 2 October 2008 she was at one Meme Sara’s house at the compound drinking. There were many people drinking tombo at that place. Although they were on the same premises they were not sitting together. The compound is not far from their house. He continued to drink up to approximately 20h00 and he got drunk. He left his mother at the drinking place drinking Kaalgat. He could not tell what time his mother came back home. The following morning he learned that his mother passed on. On 2 October 2008 before his mother went to work, she first went to drink at Meme Sara’s house and went to work. She again went to Meme Sara’s place. 7

[14] Maria van Rooyen testified that on 2 October 2008 the deceased was in her employment. The deceased arrived at her working place around 08h00. She worked up to 14h00. The deceased appeared to have consumed alcohol when she went to work. Before she knocked off her employer gave her N$200.

[15] Doctor Yuri Vasin explained the post-mortem examination done by Dr Shangula who is now deceased. According to the post-mortem examination report the cause of death is not determined. However, the chief post-mortem findings made on the body were:

A scalp contusion on right parietal aspect. An abrasion wound on the forehead. Neoplasm of the oral cavity, features of emphysematous on the lungs, features of bilateral pleuritis, fork shaped incision (small) of the vaginal and contusion of the external genitalia. Furthermore, on the genital organs, four identical small incised wounds with same distant between them are observed in the anterior vaginal wall. They seemed to have been caused by a fork. There was also a contusion on the right side introitus. Additional observations were that: The deceased could have died as a result of inhibition, due to fork injuries in the genitals or the blow on the head, could probably also precipitate death. Hence she was unable to say which of the two caused the death.

[16] Doctor Vasin explained that features that were found on the head, the contusions and laceration on the skin of the head and his observation of the photo plan of the post-mortem findings are a clear indication that those abrasions might have been associated with an impact caused by a blunt force on the head which might have been due to kicking. As far as neoplasm on the oral cavity is concerned, this is a growth of abnormal tissue into the oral cavity. An emphysematous on the lungs is a relatively common condition on the lungs and it does not have a big consequence relating to the cause of death. As far as the bilateral pleuritis is concerned, this might have been caused by chronic inflammation related to healed process. It might have been due to a cure of long time TB or pneumonia. 8 [17] Doctor Vasin further explained that the fork like wounds could have caused death because these might have caused severe pain that might have resulted in the neurogenic severe pain and it might have resulted in neurogenic shock affecting the cardio pulmonary functions of the deceased. The pierced or pounced injuries might have caused injury to the major arterial or venous blood vessels and might have caused internal or external bleeding which could be the cause of death. According to him having gone through the photo plan and the post-mortem report the cause of death was due to blunt force impact head injury and a pierce injury or sharp force injury to the genitalia. Both contributed to the cause of death.

[18] Doctor Wamboyi Njiunguna was on duty on 3 October 2008 at Keetmanshoop Hospital. Whilst on duty she attended to the accused. She observed bruises over the left forearm, left arm, right knee and scratch marks over the right wrist of the accused. The accused also showed evidence of drugs or alcohol drowsiness. The serial number of the accused’s evidence collection kit is 07N2A0332XX. The witness had also collected forensic evidence from the accused namely: An underwear that was put in the clothing collection kit. Oral swabs were collected from the accused, blood samples, head hair, cutting from fingertips, fingernails between fingers, pubic hair, swabs taken from genitalia, face swabs from the shaft, scrotum and the glands. The specimen were handed over to Constable Kazavanga. The medical report by Dr Njunguna and the collection of forensic evidence form were admitted in evidence and marked as exhibit ‘U’.

[19] Aune Kaupitwa, a laboratory assistant at National Forensic Science Institute, testified that the seal number for the deceased’s rape kit was 07N2A0818 and 07N2A0332 was for accused. She listed the exhibits in the boxes and placed the kits into the exhibit bags and closed them. She tested the clothing she was given and found semen on the underwear of the accused. She did not tamper with the exhibits that were in small boxes. All the exhibits were not tampered with and they were sent for DNA.

[20] Maryn Swart, Chief Forensic Scientist at Forensic Science Institute Namibia, testified that each sexual assault kit has different components which are sealed with the seals that they provide in the kit. The kit itself is also sealed. The sexual assault 9 evidence collection kit was within the small NFE bag. The various components from the accused and deceased each were in their own designated boxes and some of the components were open such as the clothing but other components were still sealed with the original seal.

[21] Ms Kaupitwa opened the exhibits pertaining to this case, namely the clothing on 1 August 2009 prior to her examining the exhibits on 2 November 2011. She, Ms Swarts, sealed exhibits in the NFB bag. She corroborated the evidence of Fredricks that exhibit “A” had serial no.: 07N200332XX. She removed the fingernail cutting, heard hair, pubic hair, finger web swabbing right and sealed them in a bag. These were still sealed with the original seal when they were put in the bag. The above mentioned exhibits were from the accused. They were transferred to NFB bag number 12377 that was further sent for DNA analysis. There was also the deceased’s kit that was sealed. Inside the brown bag there was clothing for the deceased. The bag was opened by Kaupitwa when she did the preliminary screening for semen. Swarts tested the clothing for the deceased. The finger nail swab from the right hand side, the body fluid, vulva cervical finger nail swab and the finger nail swabbing were all sealed in a forensic evidence bag number NFB12380. This was from the deceased exhibit “B”. The reference blood sample was sealed in FEB number NFB 12379. This was blood sample obtained from rape kit No.: 07N2A0818 for the deceased. Reference numbers from the deceased were indicated as exhibits 1 – 4 and were sealed collectively in the forensic evidence bag No.: NFB 08504. There was no evidence of any tampering of the exhibits. On exhibit 1, 3- 6 there were two swabs that she designated as No. 1 and No. 2. No 1 is usually from the inner surface and No. 2 is from the outer surface of the condom. The swabs were sealed in a forensic bag NFB 12378.

[22] The surface of the condom pack was also sealed and was indicated as exhibit 2. The surface of the packet was swabbed for epithelial cells and it was designated as No. 3. They were also put in exhibit bag NFB 12378. It was further her evidence that the following exhibits pertaining to this case were sent to the British Columbia Institute of Technology (BCIT) for DNA analysis namely: Exhibit B from the sexual assault evidence collection kit with serial no.: 07N2A0818XXX content, finger nail swab, a vulva swab, a finger swab, a finger web 10 swab, body fluid swab, cervical swab, finger nail swab and finger nail cutting inserted in NFB12379. In NFB12377 exhibit A from serial No.: 07N2A332XX there were the following components: finger nail cutting, reference head hair, reference pubic hair, the finger web swabbing, the finger nail swab left finger and fingernail swab right. She explained that the overall NFE bag referred to is a bigger container in which you put all the collected evidence for all the cases that had to be sent for DNA and each case was sealed individually. If there is any tampering the BCIT would report to them that exhibits were tampered with. The exhibits were processed and packed according to standard procedure before they are sent for DNA analysis at BCIT. Ms Swart was responsible for the report 767/2008/R1 marked as exhibit “K”. She testified that when exhibits are received at the laboratory they are photographed in order to indicate the condition in which the exhibits were received. The report by Mr Swart was admitted in evidence and marked as exhibit “K”.

[23] Steen Hartsen a forensic DNA analyst at BCIT in Canada testified that he worked on samples that were received from Namibia Forensic Science Institute (NFSI) in relation to laboratory reference no.: 767/2008. He received an overall bag NFE 08433 on 28 November 2011. The bag was photographed on 29 November 2011. There were evidence bags NFE 08433 and NFE 08434. NFE 08433 was designated No. 1 A and NFE 08434 was designated No. 1 B. The witness testified about the components of the evidence bags he received from Ms Swart as per his report No.: 2011-B327-1, amended, dated 13 September 2013 exhibit “M”. He explained the procedures followed and the different control measures in place concerning the process of exhibits.

His conclusions are as follows:

1. With respect to exhibit K1 (Reference blood sample):

(a) Sample K1–1 (Swab cutting) yielded sufficient DNA to proceed with DNA profiling and resulted in a full profile that is suitable for comparison purposes. The contributor of this profile is female. This profile is designated as “female –1”. 11

2. With respect to exhibit K2-1 (Hair) Sample K2 (Hair) yielded sufficient DNA profiling and resulted in a full profile that is suitable for comparison purposes. The contributor of this profile is male. This profile is designated as “male-1”.

3. With respect to exhibit K3 (Reference Head hairs):

(a) Sample K3-1 (Hair) yielded sufficient DNA to proceed with DNA profiling and resulted in a full profile that is suitable for comparison purposes. The contributor of this profile is male and matches that of ‘male-1’. Exhibit Q5 exhibit 2, sample Q5-1 (swab cutting) yielded sufficient DNA to proceed with DNA profiling and resulted in a full profile that is suitable for comparison purposes. The contributor of this profile is male.

(i) The profile of the male contributor matches “male-1”. The estimated probability of selecting an unrelated individual at random from African American population with the same profile is 1 in 169 quintillion. (ii) The accused’s DNA was also found on the fingernail clippings of the deceased as per report point 22 with respect to exhibit Q18. The profile of the male contributor matches male 1, the estimated probability of selecting an unrelated individual at random from the Texas African American population with the same profile is 1 in 169 quintillion.

[24] The witness further testified that when he received the evidence bags from Namibia Forensic Science Institute he took photographs of exhibit bag namely NFB- 12377 and photograph depicting reference No.: 768/2008 was marked as exhibit N. In that bag there were finger nail swabbing left, finger nail swabbing right, finger web swabbing as well as the reference pubic hairs and reference head hair and a finger nail cutting. The bag was intact when he received it. He also received evidence a sealed bag NFB-12378 that contained exhibits 1, 2, 3 and 4. A photograph depicting evidence bag NFB-12378 was admitted in evidence and marked as exhibit O.

[25] Exhibit P - depicting Photograph exhibit K2 that contained pubic hair was admitted in evidence. The package was sealed when received by the witness. Exhibit Q – Photograph depicting exhibit K3 pubic head hair was admitted in evidence. Pubic hair and head hair were marked as exhibit R1 and R2. Photograph 12 exhibiting swab from the surface was marked exhibit S. It was sealed when received. The bag was marked S 1 and the envelope as S2. Photograph depicting exhibit 2 swab and container exhibit Q5 were also admitted in evidence and marked as exhibit 5. The report dated 3 March 2012 was also admitted in evidence and marked as exhibit ‘T’. The witness further testified that he went through all the different steps for him to arrive at the conclusions. He determined that there had been no issues with continuity. The bags having been sealed and all the control measures having been complied with there was no contamination. He was then able to compare the sample that he received from exhibit 2 Q5 to the known reference K2 to determine whether there was a match. Exhibit K2 and K3 were the same profile from the same individual.

[26] Chief Inspector Kotungondo testified that when he went to the scene of crime the deceased was identified to him as Rebecca Isaaks by Bernice Isaaks. The deceased was staying at the outside room. She was lying on a bed in the room on her back. She was lifeless. The deceased’s clothes were in disorder. The deceased had a blunt wound on the forehead or an abrasion. She was wearing a night gown that was pulled up to her thighs. She was not wearing underpants. He observed two condom packets on her dressing table inside the room with one used condom. There was also a brown purse. When he went to the scene he was with Sergeant Frederick and Sergeant Jacobs. There was a veranda adjacent to the house under it there was a matrass. Another used condom was discovered on the matrass. There was also sperm like substance on the matrass. At the scene visibility was good because there were spray lights from a lamppost. Opposite the house there were lights from New Start Centre. Lights fall directly to that area of the house. Bernice reported to them that there was a man at the deceased’s room. She gave his description. Bernice also said that the man had left with the deceased’s property. Upon the information provided by Bernice the police divided themselves in groups to go and look for the culprit. The accused was arrested by the other group and brought to the police station. The accused was found in possession of the deceased’s property that was identified by Bernice. The accused was taken to the hospital for examination. A rape kit and J 88 were completed. The witness identified the goods that were found in the bag that was in possession of the accused. 13 [27] Apart from the items belonging to the deceased, there were other items belonging to the accused. The accused had a camping bag that contained components of two plates, two knives, two spoons and two forks but the set of forks was missing. The bag had compartments. It was put to the witness that the accused had that bag long time ago and the forks got missing before he went to Keetmanshoop. The witness could not confirm or dispute it.

[28] The State introduced a warning statement in which accused was said to have made admissions. As alluded to earlier the defence opposed the warning statement on the grounds that the accused was not informed of his rights to apply for legal aid, the right not to incriminate himself and that he was assaulted by the police officers a certain Aribeb or Ganaseb preceding the warning statement. The reason why he mentioned two police officers was because they do look alike. A trial-within-a-trial was held and a warning statement was admitted in evidence. I did not give reasons for my ruling as I indicated that the reasons would be given in the judgment.

[29] The State led evidence about the circumstances in which the statement was made. Chief Inspector Kotungondo took a warning statement from the accused. He used a pro forma document called a warning statement Pol 17, which contains a warning that the accused is not under obligation to answer any question put to him or make a statement and whatever he chose to say would be written down and may be used against him at a later stage. He was also informed of his rights to legal representation by way of a private legal practitioner or to apply for legal aid. The police officer communicated with the accused in Nama, the language the accused understands better. When the accused was initially informed of his right to apply for legal aid he said he was going to apply but later on changed his mind and said he was going to conduct his own defence. The accused was further asked questions as per pro forma. When he was asked whether he wished to make a statement or to answer questions after he had consulted with his legal representative or whether he wished to remain silent, he chose to make a brief statement. Before the statement was taken down the following questions were posed to the accused.

‘Question: Is it your own choice to make a statement or answer questions? Answer: Yes 14 Question: Do you have injuries, if injured describe injuries? Answer: Scratch marks on both arms and hands. He described them that he was scratched by thorns. Question: Have you been influenced in any way to make a statement, if yes describe fully? Answer: No Question: Are you at this time under the influence of alcohol and or drugs or medication? Answer: No Question: Do you fully understand the purpose and consequences of these proceedings? Answer: Yes’

Each and every page was signed by the accused and the police officer. The Pro forma was admitted in evidence and marked as exhibit “AA”.

[30] Pineas Ganaseb testified that the day the accused was arrested he was on duty up to 10h00. He never threatened the accused that he would assault him like the serious crime officers who assault people.

[31] Chief Inspector Berendt Jacobus Groenewald a staion Commander at Keetmanshoop testified that the accused was arrested on 3rd October 2008 by his group consisting of Sergeants Swartbooi, Chirstiaans and himself. According to the Occurrence Book Aribeb and Ganaseb were at Criminal Investigation Unit. The people who were on duty also included Ganaseb and Aribeb. Ganaseb was on standby duty. People reported on duty from 07h45 on Friday 3. The shift ended next Monday. Aribeb and Ganaseb were not present when the accused was arrested.

[32] The accused testified that at the time of his arrest on 3 October 2008. Aribeb grabbed him on his pants and pulled him to the vehicle. Aribeb pulled his gun and said if the accused tried to run away he would shoot him. When they went to the police station that very same day Kotungondo took a piece of paper and started to ask questions. Whilst they were busy Ganaseb entered and asked whether the accused knew that they (police officers) were serious crime officers and that there were people who committed crimes and killed people. Ganaseb slapped the 15 accused. Aribeb said the accused must talk. When the accused said he did not kill, Aribeb beat him three times in the stomach.

[33] When the accused was asked about threats concerning the killings, he said they never mentioned about killings but he could deduct from what they were saying. He got that impression. Concerning the explanation of rights the accused said the police officer never explained to him anything and that he was only asked to sign the document. The accused further said he did not understand Kotungondo properly when he spoke to him. The accused’s further testimony is that he never made any admission as he never made any statement at all.

[34] There are primary requirements for admissibility of admissions which should be complied with namely: The statement must have been made by the accused; it must have been made voluntarily. The State must prove that the admission was made free of promise, inducement or threat from a person in a position of authority or other threats that may induce a Court to find that it had not been established beyond a reasonable doubt that the admission was made voluntarily.

[35] Although the accused initially claimed that when a statement was taken he was denied the opportunity to exercise his right to apply for legal aid, during the course of a trial-within-a-trial he stated that he was not informed of his rights at all. However, this is not borne out by evidence as Chief Inspector Kotungondo has used a pro forma that contains all the steps he had taken before he took down the statement. The accused was informed of his rights to legal representation. He stated that he wanted to apply for legal aid, but changed his mind and decided to make a statement. If the accused was not informed of his rights at all how would it be possible that he was denied the opportunity to exercise his rights to apply for legal aid? I am satisfied that the accused was informed of his right to legal representation and his right to remain silent as per pro forma. Therefore the accused’s assertions on these grounds are rejected as they cannot possibly be true.

[36] I will now proceed to the third ground that he was either assaulted by Aribeb or Ganaseb before the warning statement was taken. Although the accused’s 16 ground was that he was assaulted by one of the police officers either Aribeb or Ganaseb as the trial progressed the accused changed his version and said he was actually assaulted by both of them. However, during the trial-within-a-trial the accused testified that at the time he was arrested Aribeb threatened to shoot him with a gun should he try to run away. This piece of evidence was disputed by state witnesses Swartbooi, Groenewald and Aribeb himself who testified that Aribeb was not present at the time of the accused’s arrest. The accused further testified that whilst he was in the office with Kotungondo, Aribeb and Ganaseb came to the office. Ganaseb threatened to kill the accused and Aribeb assaulted the accused three times in the stomach. He again testified that he knew Aribeb very well. One wonders if the accused knew Aribeb very well why he would say that he was assaulted by either Aribeb or Ganaseb because they looked alike?

[37] The accused again testified that Aribeb and Ganaseb assaulted him in Kotungondo’s office the day when he was arrested and that was the day the warning statement was taken. When it was brought to the accused’s attention that the warning statement was taken on 5 October 2008 and not on 3 October 2008 the day when he was arrested. The accused said the police officers came to Kotungondo’s office on the day he was arrested but he again changed his version that in fact they came to Kotungondo’s office two or three times on different dates and again he said he could not remember how many times these officers went to Kotungondo’s office. Although the accused in his testimony testified that Ganaseb threatened to kill him this is contrary to his instructions when it was put to Ganaseb that he said: ‘We are officers of the Serious Crime Unit and we will beat you like the officers of Serious Crime Unit of Windhoek.’

[38] Kotungondo testified that the accused was not assaulted in his presence. Aribeb and Ganaseb also disputed that they assaulted the accused. Aribeb even testified that he was not on duty when the accused was arrested as his duty ended at 10h00. However, this has been refuted by the Occurrence Book that reflects that Aribeb was on duty. Although, he was on duty, there is strong evidence that he was not present when the accused was arrested. 17 [39] Having considered the evidence placed before me by the State as well as the defence, the accused had contradicted himself in material respects as far as his alleged assault is concerned, namely he said the assault was perpetrated on him by either Aribeb or Ganaseb but made a U-turn to say that he was assaulted by both. The accused’s version is full of contradictions and inconsistencies. Again he said he was assaulted in the stomach but the doctor who examined him did not observe such injuries. It is highly unlikely that the accused was assaulted because he could not even establish when he was assaulted and by whom. It is also highly unlikely in the circumstances that Aribeb threatened to kill him with a gun as he was not present when the accused was arrested. Concerning the alleged threats in the office, the accused himself said the officers never mentioned that they would kill him. He made his own conclusions by drawing inferences. Therefore I make a finding that the accused was not assaulted or threatened with assaults. The accused in his reply to the pre-trial memorandum only indicated that he informed the police officer that he wanted to have a legal aid lawyer and that his right not to incriminate himself was not explained to him and this was maintained at the time when he pled. The allegations of the assaults only came in as the trial progressed and events unraveled. I consider this to be an afterthought. I have already pointed out how the accused contradicted himself and it is not necessary to repeat it. Therefore this ground also fails.

[40] Furthermore, the accused testified that he never gave a statement at all implying that Kotungondo invented whatever was said in the warning statement. If this was one of the grounds for objection from the beginning, this Court was not going to hold a trial-within-a-trial as this could have been decided as a matter of credibility. If the accused did not give a statement at all during the warning statement was being taken, then what was the point of objecting to the admissibility of the admission in the warning statement on the ground that his rights of legal representation was not explained to him more specifically that he was not allowed to exercise his right to apply for legal aid and that he was not warned not to incriminate himself.

[41] Having analysed the evidence, I am satisfied beyond a reasonable doubt that the accused indeed made the statement freely and voluntarily and that he was properly informed of his rights to legal representation, including the right to apply for 18 legal aid and the right to remain silent. Those were the reasons why I ruled the warning statement to be admissible.

[42] The accused in his warning statement alleged that on Friday 3 October 2008 at about 10h00 he met the deceased who was an unknown lady to him at the Single Quarters in Tseiblaagte and proposed to her. The deceased accepted and told him to visit her at late hours. He then visited her after she went home. He gave her N$130 as part of their agreement to have sexual intercourse with each other. She spent the money on liquor and they drank together. The accused went to her room at house No. 502 in Tseiblaagte between 23h00 – 23h30. He found the door to the deceased’s room open and she was lying on her stomach on the bed and her legs were on the floor. He picked the deceased up and put her on the bed lying on her back. At that stage the deceased was still breathing and alive he did not notice that she was injured or not. The accused put on a condom on his stiff penis and after taking her underpants off he had sexual intercourse with her. She did not object to it.

[43] She was still breathing normally and as he was also drunk he did not notice any abnormality with her breathing. After having sex about three times with her changing condoms each time and ejaculating he got up and left her. He had sex with her twice in the house and once outside on the veranda where a matrass was. He took her outside and she was walking on her feet although she was drunk and could not walk on her own. He after finishing having sex with her on the matrass, he led her back again as before to the room and laid her on her back on her bed. After searching into her purse for any change she might have left from the money he gave her, he could not find any money. He took her property like, curtains, a bag with ladies dresses, panty and blanket and left. Before leaving, a lady from the main house opened the window and instructed him to leave as she wanted to sleep. He then took the deceased’s property and left. The deceased was still breathing when he left after putting her back on the bed. The accused was hitch hiking to Bethanie when the police arrived and arrested him. They mentioned for the first time that the lady he had sex with died or was murdered. He was brought to the police station and detained where after the deceased’s property he had with him was taken by the police. He opined that the deceased might have been killed by somebody else or the boyfriend she mentioned to him. The accused had sex with the deceased, took 19 her property, but did not assault her or kill her. She had no wounds at the time he met her and only that she was drunk after and at the time he had sex with her and could not stand on her own.

[44] Briefly that was the State case. Accused gave evidence under oath and called no witnesses.

[45] The accused testified that during October 2008 he was passing by Keetmanshoop from Mariental on his way to a farm called Khoses. He spent the evening at his aunt’s house in Keetmanshoop and the following morning he went hitchhiking and the police found him at the hitchhiking place. He had his baggage. He had a small bag, a suitcase and a plastic bag. The suitcase contained shirts and trousers and the small bag had 2 cups, 2 plates and spoons. The accused denied that the deceased’s property was found in his possession. He said on the date of his arrest he was wearing a long sleeved maroon shirt, a black triple 7 trousers and leather All Star takkies. He denied that on the day he was arrested he was wearing a green t-shirt. He testified that when he first took possession of the cutlery bag there were no forks. During cross-examination the accused said Chief Inspector Kotungondo showed him condoms and told him to touch them. This is contrary to what was put to Kotungondo that he only showed condoms to the accused. Concerning the grey bag the accused said he only saw it for the first time in Court, later on he stated that the bag was lying on the ground when the police found him at the hiking spot and they loaded it. However, this is contrary to the admissions made by the accused in terms of s 220 Act 51 of 1977 that the bag was part of his property when he said the property listed including the grey bag were found in his possession.

[46] The accused further said he did not have a green t-shirt as he rarely wore t- shirts and most of the time he would wear long sleeved shirts. However, during cross-examination he said he has been wearing a green t-shirt under a long sleeved shirt.

[47] I now proceed to consider counsel’s arguments. Ms Esterhuizen, counsel for the State, argued that the accused was found in possession of the deceased’s property a few hours after the commission of the crime and he had admitted in terms 20 of s 220 of the Criminal Procedure Act 51 of 1977 that the goods as listed in the annexure were found in his possession. There is evidence from Bernice Isaaks that she saw a male person wearing a green t-shirt leaving with the deceased’s property. The accused through his instructions confirmed that he was wearing a green t-shirt except that it had no letters written on it. The bag that was found with the accused contained pairs of ladies underwear that were identified as the deceased’s property. After the male person left the yard Bernice immediately went to the deceased’s room and the deceased was found dead. The accused was seen at the place where the deceased was drinking.

[48] Furthermore, counsel argued that although the accused had distanced himself from committing any of these offences, the accused described in his warning statement the position how he found the deceased on the bed when he entered her room, he also described how he left the deceased lying on her back on the bed, and the police found her in that position. He also described how she was still breathing, walking on her legs and that she had no injuries when he arrived. The deceased was found by the police in the position he left her. The accused is the only person to explain the circumstances under which the deceased was killed. The only reasonable inference to be drawn is that he assaulted the deceased with intent to kill, therefore acting with dolus directus. The Court should be guided by the post- mortem report that the deceased could have died from the fork shaped incision of the vagina and an abrasion wound of the forehead.

[49] Concerning count 2 counsel argued that this charge is based on the fact that the deceased was found naked without her underwear and her nightgown lifted up to her thighs. Used condoms were found in the room and in the veranda. The DNA of the accused was found on the condom that was found on the deceased’s premises. Although the accused is alleging that Chief Inspector Kotungondo showed him the condoms and told him to touch them, it was never put to Kotungondo that he told the accused to touch the condoms. Counsel argued that the rape of the deceased is directly linked to the deceased’s death. The accused’s DNA was also found on the fingernail clippings of the deceased. 21 [50] Concerning the third count counsel argued that violence was used to remove the deceased’s property. Aggravating circumstances were present in that dangerous weapons were used to inflict grievous bodily harm having regard to the injuries of the forehead and the fork shaped incision to the vagina. The accused left the deceased dead in her room when he took her property. Counsel argued that the State had proved its case beyond a reasonable doubt and the accused should be convicted as charged. Counsel referred me to authorities.

[51] On the other hand, counsel for the defence conceded that the accused was in the deceased’s room because DNA for the accused was found on the fingernail clippings of the deceased as well as on the used condom that was found on the deceased’s premises. However, counsel made it a point of criticism that the fact that the accused was in the deceased’s room is not proof that he killed her as the cause of death was not determined. Counsel further argued that if one has had regard to Dr Vasin’s testimony it appeared he was not sure of the findings made by the doctor who conducted the autopsy. There are instances where he testified that he would not agree with some of the observations made by that doctor. He also kept on making speculation how the death could have happened. The doctor conceded that the blunt injury could have been caused by a kick or blow or even by falling.

[52] With regard to the fork like incision injury, the doctor testified that a wound might have contributed to the death if it hits major vessels which would lead to severe bleeding. However, according to the post-mortem report there is no evidence of severe bleeding which means that death due to incision injury is excluded leaving the cause of death to be due to blunt force injury. There is no evidence that the accused strangled the deceased or that he inflicted blunt force injury. Therefore, it could not be said that the only inference that could be drawn is that the accused caused those injuries because there is a possibility that the deceased could have fallen down considering the evidence that she was very drunk to the extent that she was carried away from the compound. Counsel suggested that the deceased could have fallen in her room before or after the accused had sexual intercourse with her.

[53] Counsel further argued that the state has failed to prove the element of unlawfulness in respect of the first count. Counsel furthermore submitted that the 22 accused’s DNA that was found on the fingernail clippings of the deceased was not due to the fact that the deceased came into contact with the accused’s DNA because she was trying to defend herself. There is a possibility that she came into contact with the accused’s DNA because they were having consensual sexual intercourse.

[54] With regard to the count of robbery with aggravating circumstances, counsel argued that there is no evidence that the accused used violence to induce submission on the deceased for him to take the property. Counsel suggested that a possibility exists that the property was taken after the death of the deceased due to the fact that the Court has no knowledge of the time of death. He also argued that it could also have been removed whist the deceased was alive. Counsel therefore urged this Court to return a verdict of not guilty on all the counts as the State has failed to prove beyond a reasonable doubt that the accused has committed those offences. Counsel has also referred me to authority regarding a burden of proof. I have considered the authorities referred to me by both counsel.

[55] Having considered the evidence I am called upon to determine whether the State has discharged its burden of proof beyond a reasonable doubt that the accused wrongfully, unlawfully and intentionally killed the deceased, raped her under coercive circumstances and robbed her of her property where aggravating circumstances were present.

[56] The State rests its case on direct evidence, forensic evidence and circumstantial evidence. There is no doubt that the person who was seen by witness Bernice Isaaks was the accused as it has been conceded that the accused was at the deceased’s room. It has also been conceded that the accused had sexual intercourse with the deceased. It is further common cause that the accused’s DNA was found on the deceased’s fingernail clippings and on the condom that was found on the deceased’s premises. Furthermore, it is common cause that the accused was found in possession of the deceased’s property.

[57] Issues in dispute are who inflicted the injuries on the deceased and whether those injuries caused the deceased’s death; whether the accused raped the 23 deceased and whether they had a consensual sexual intercourse and finally whether the deceased was robbed of her property under aggravating circumstances.

[58] When dealing with circumstantial evidence, there are two cardinal rules of logic to be satisfied as set out in R v Blom 1939 AD 188 namely:

(a) The inference sought to be drawn must be consistent with all the proved facts, if it is not, then the inference cannot be drawn.

(b) The proved facts should be such that they exclude every reasonable inference from them save the one to be drawn. If they do not exclude other reasonable inferences, then there must be doubt whether the inference sought to be drawn is correct.

[59] When dealing with circumstantial evidence the Court must consider the cumulative effect of all the evidence in determining whether the accused’s guilt has been proved.

[60] As it may be recalled, according to the post-mortem report the cause of death is undetermined. However, the doctor who conducted the post-mortem made additional observations that the deceased could have died as a result of inhibition to fork injuries in the genitals or the blow to the head could probably also precipitate death. Hence she is not able to say which of the two caused death.

[61] Although the State has the right to call a doctor to explain the post-mortem report conducted by another doctor who is no longer available, the doctor called to explain the report has no right to substitute the findings made by the doctor who conducted the autopsy with his own because he never had the opportunity to examine the deceased. Dr Vasin’s suggestion as what the cause of death could be is mere speculation and this Court will not rely on his opinion in this regard. Therefore the cause of death remains undetermined.

[62] Counsel for the defence argued that since the deceased was very drunk there is a possibility that the blunt force injury could have been caused by falling. This possibility in my view cannot be excluded. However, these were not the only injuries 24 observed on the deceased. She also had incision injuries on her genitalia caused by a fork like instrument. There is evidence that the accused was found with a camping bag that had different components of cutlery. One such component was for two forks. The other items of cutlery were still in the bag except for two forks that were missing. The accused explained in the warning statement that when he found the deceased she was still alive; she walked and had no injuries. The only inference that can be drawn is that the accused caused the incision wound possibly with one of the forks. I therefore find that the accused did assault the deceased with the intention to cause her grievous bodily harm. Since it is not clear whether the death was caused by the blunt force injuries or by the injuries caused by a fork like object, I find that the State did not prove beyond reasonable doubt that the accused killed the deceased but it has proved that the accused assaulted the deceased with intent to do her grievous bodily harm.

[63] I will now proceed to the second count of rape. The accused alleged that it was a consensual sexual intercourse. However, there is evidence that the deceased was very drunk to the extent that she had to be carried to her house, a fact conceded by the defence. If the deceased was very drunk then she could not have been in a position to consent to a sexual act. The contention that the sexual intercourse was consensual is a self-serving statement for the accused to cover his tracks. Although the warning statement has an element of the truth in it, it was not the entire truth. As pointed out earlier the deceased could not have given her consent in the drunken state she was in. I therefore accept the incriminating part and reject the exculpatory or self-serving parts as unreliable. For the foregoing reasons I find that the accused did rape the deceased.

[64] Having made the above findings, it remains to consider the third count of robbery with aggravating circumstances. Immediately Bernice having observed the man looking through the deceased’s property, she informed the man to leave. When the man left, he took a grey bag with red straps that belonged to the deceased and left with it. The bag was later found in the accused’s possession. Immediately after the man left, Bernice went to the deceased’s room and discovered that the deceased was dead. It is clear that the taking of the deceased’s property was preceded by the deceased’s death. There is evidence that violence was perpetrated on the deceased 25 as medical evidence revealed that she had incision wounds caused by a fork like object. I find the proposition by counsel for the accused that there was no evidence of violence preceding the taking of the deceased’s goods to be untenable and fallacious. I therefore reject it. The State has proved beyond a reasonable doubt that robbery with aggravating circumstances was committed by the accused.

[65] In the result the following verdict is reached.

1st Count: Not guilty of murder but guilty of assault with intent to do grievous bodily harm.

2nd Count: Guilty of rape contravening s 2(1)(a) read with ss 1, 2, (2) and 3 of The Combating of Rape Act 8 of 2000.

3rd Count: Guilty of robbery with aggravating circumstances as defined in s 1 of Act 51 of 1977.

------N N Shivute Judge APPEARANCES

STATE : Ms Esterhuizen Of Office of the Prosecutor-General

ACCUSED: Mr Isaacks Instructed by Directorate of Legal Aid