S v Avelinu and Others (CC 6 of 2003) [2005] NAHC 49 (22 November 2005)

CASE NO. CC 0 6 / 2 0 03 IN THE HIGH COURT OF NAMIBIA In the m a t t er between: THE STATE versus ELIA AVELINU ANDAPO KRISTOF SHIGWEDHA REINHOLD NAMBAHU LIKIUS SHIIKUNDENI SHAFODINO ELIFAS NDALUSHA JASON MIIPALE NANGOMBE ACCUSED NO. 1 ACCUSED NO. 2 ACCUSED NO. 3 ACCUSED NO. 4 ACCUSED NO. 5 ACCUSED NO. 6 CORAM: GIBSON, J. 2004.11.08; 2004.06.07-25; 2004.11.09 2004.11.10; 2004.11.15; 2004.12.09; 2005.01.20 2005.02.05; 2005.04.13 2005.04.05-29; 2005.06.14-30; 2005.07.15; 2005.11.22 2 0 0 5 . 1 1 . 22 Heard on: Delivered on: JUDGMENT GIBSON, J.: The six a c c u s ed are charged on four c o u n ts of the indictment. The first c o u nt is of murder, namely, t h at on the 1 9th May 2 0 02 at or n e ar Peoples Inn Bar a nd Gambling House no. 2 in the Windhoek District t he a c c u s ed unlawfully a nd intentionally killed A n d r e as J o hn Nghatanga, a male person. C o u nt 2 charges the a c c u s ed with robbery in aggravating c i r c u m s t a n c e s, in t h at on the said date a nd at t he said Gambling House no. 2 in the district of Windhoek t he a c c u s ed unlawfully a nd with intent to force t h em into submission, a s s a u l t ed a nd t h r e a t e n ed to a s s a u lt M a r k us Shifena Salom Walenga a nd other witnesses p r e s e nt by striking a nd pointing firearms at t h em and, unlawfully with intent to steal did steal N$44 0 0 0 . 00 a nd one shotgun, t he property of or in t he lawful possession of the said People's I nn Bar, Gambling House, no. 2 a nd or Martin Shifena a n d / or Salom Walenga a nd or M a t h e us Mundjamina. And t h at aggravating c i r c u m s t a n c es as defined in Section 1 of Act 57 of 1977 are p r e s e nt in t h at the a c c u s ed a nd or an accomplice were, before/after or during the commission of the offence, wielding a firearm or a ny other d a n g e r o us weapon or inflicted or t h r e a t e n ed to inflict grievous bodily h a r m. C o u nt 3 alleges robbery in aggravating c i r c u m s t a n c e s, in t h at on the 1 9th May 2 0 02 at or n e ar Peoples Inn Bar, Gambling House No. 2, in the district of Windhoek, the a c c u s ed unlawfully, with intent to force h im into submission, a s s a u l t ed A n d r e as J o hn Nghatanga by shooting him in the c h e st with intent to steal a nd took from him one makarov pistol n o. 4 7 85 a nd one cellphone the property of or in the lawful possession of the said Andreas J o hn Nghatanga. And t h at aggravating c i r c u m s t a n c es as defined in Section 1 of Act 51 of 1977 are p r e s e nt in that, a c c u s ed 1 a nd or accomplices, before or after or d u r i ng the commission of the offences w as wielding a firearm or a ny other d a n g e r o us weapon, inflicted or t h r e a t e n ed to inflict grievous bodily h a r m. C o u nt 4, charges all the a c c u s ed with defeating or obstructing, or a t t e m p t i ng to defeat or o b s t r u ct t he course of justice, in t h at between the 1 9th of May 2002 a nd t he 1 9th J u ne 2 0 0 2, at or n e ar Windhoek wrongfully a nd unlawfully with intent to defeat or o b s t r u ct the course of j u s t i c e, set the s h o t g un no. 0 1 / 0 9 / 1 7 11 alight, t h at thereafter the a c c u s ed b u r i ed its r e m a i ns b e c a u se they foresaw the possibility t h at t he firearm might link t h em to the commission of the crimes set o ut above in c o u n ts one to three, a n d / or t h at the firearm might be u s ed as evidence in a prosecution against them. In the alternative to c o u nt four, it is alleged t h at b e t w e en May to J u ne 1 9th 2 0 02 the accused did unlawfully, intentionally a nd maliciously d a m a ge a firearm, t he shotgun mentioned above, the property of M a t h e us Munjaniva Salom Walenga by setting it alight a nd or burying the r e m a i ns thereof, t h at the said shotgun w as the property of or in the lawful possession of M a t h e us Mundjaniva a nd or Salom Walenga a nd or Martin Shifena. The a c c u s ed p e r s o ns pleaded n ot guilty, ie e a ch in t u rn denied all t he c o u n t s. The s u m m a ry of material facts in the State's case is t h at the five a c c u s ed p e r s o ns set up a plan together to go a nd rob the p a t r o ns of the Peoples I nn B a r / G a m b l i ng House no. 2 which is situated in Katutura, Windhoek, t h at it w as also p a rt of the plan to u se firearms in t he course of the robbery; t h at on the night of the 1 9th May 2 0 0 2, the a c c u s ed p e r s o n s, some of whom ) were armed, entered the premises of the nightclub, a nd by u s i ng violence a nd t h r e a ts of violence stole N$44 0 0 0 . 00 in c a sh a nd a shotgun. At the s a me time the a c c u s ed p e r s o ns also shot a nd killed the d e c e a s ed a nd stole a makarov pistol a nd cellphone, t h at after t he robbery the a c c u s ed p e r s o ns set the s h o t g un on fire a nd b u r i ed its r e m a i ns as they feared t h at it might link t h em to t he commission of the crimes or m i g ht be u s ed as evidence in t he prosecution against t h e m. By burying the said r e m a i ns of t he s h o t g un the a c c u s ed p e r s o ns t h us d a m a g ed it. The State further alleges t h at in acting in this m a n n er t he a c c u s ed p e r s o ns acted in common p u r p o se throughout. It is a trite proposition generally, in criminal proceedings t h at the State b e a rs the d u ty to prove t he charges preferred a g a i n st a c c u s ed p e r s o ns beyond reasonable d o u bt by leading sufficient evidence, w h e r e as the accused may, if he so decides, lead evidence to s u b s t a n t i a te his claim of innocence. In this case the State relies on the doctrine of c o m m on p u r p o s e, n a m e ly t h at all the a c c u s ed p e r s o ns were p r e s e nt together at the scene of the crime, where a shot resulting in t he d e a th of a p e r s on w as fired, a nd a s s a u l ts a n d / or t h r e a ts were p e r p e t r a t e d, t h at e a ch of the a c c u s ed was actively involved or w as a w a re of the a s s a u l ts a nd t h r e a ts being m a de at the Peoples Inn B a r / G a m b l i ng House no. 2, a nd t h at e a ch i n t e n d ed to m a ke c o m m on p u r p o se with t he actual perpetrators, a nd t h at e a ch participated in some form of association with the c o n d u ct of the o t h e r s, a nd finally, t h at each accused h ad t he intention or foresaw the possibility of someone being killed b ut w e nt a h e ad a nd participated, reckless as to whether or not d e a th would result. I will begin with a s u m m a ry of the evidence of Mrs S a k e u s, girlfriend a nd m o t h er of the child of a c c u s ed 2. She said s he a nd a c c u s ed 2 have k n o wn each other for t h r ee y e a rs b ut s he h ad lived with him for two years. Mrs S a k e us said she knows a c c u s ed 3 as a friend of accused 2 as he once resided with t h e m. She said she also knows accused 1 as a friend of f i a c c u s ed 2 a nd h as known him for a b o ut a year a nd a half. She knows a c c u s ed 5 a nd 6 as r e s i d e n ts in the neighbourhood. They also sometimes visited t h em or sometimes patronised h er s h e b e e n / s h o p. She said a c c u s ed 2 a nd 3 were together at h er h o me on the evening of the 1 8th a nd h ad s at with a c c u s ed 5 a nd 6, w ho h ad joined t h e m, all were j u st talking a nd n ot drinking. Sometime in the course of the evening the four were joined, b ut very briefly, by a c c u s ed 1. He arrived in a blue VW Golf, a taxi, with a white stripe. She said she h ad s e en him driving it a b o ut in t he last three m o n t h s. Ms S a k e us said she did n ot know a c c u s ed 4 t h at well, although she h ad s e en him a b o ut for a b o ut a year. Sometimes he also came to h er s h op t h en she s aw h im once again in prison, afterwards. Later t h at day, at a b o ut midnight, a c c u s ed 2 a nd all the others left. They told h er t h at they were going to town a nd r e t u r n ed at a b o ut 5am. She said although she w as still in bed a nd did n ot see t h em arrive, s he knew it was a c c u s ed 2 or 3 who h ad come for nobody else could have ordered B a r n a b as to move in with h er from the next room. Mrs S a k e us said she t h en h e a rd noises like shuffling of feet, a nd a noise which seemed to r e s e m b le coins being dropped. It t h en w e nt quiet a nd she realised they h ad left. She next h e a rd them r e t u r n i ng at about 7 a m. She a s k ed where they h ad been a nd they told her t h at t h ey h ad b e en for a drive n e ar the river. She said s he got up a nd w e nt to h er shop next door. Accused 2 a nd 3 remained b e h i n d. At some point a c c u s ed 3 came to t he s h op carrying "a m a n 's handbag". He ordered some a u t u mn h a r v e st a nd paid N$ 17.00 for it, in $1 coins, which the a c c u s ed took from a b a nk plastic bag. She also noticed t h at there were m a ny more s u ch plastic bags with coins in the "handba.g". Accused 3 t h en left. Sometime later a c c u s ed 3 said he w as going to Klein W i n d h o ek to change some money. Meanwhile h er boyfriend, accused 2, a s k ed h er to m a ke some breakfast for t h e m. She was still m a k i ng it w h en a c c u s ed 3 r e t u r n ed a nd said it is getting too late, it is time we left. This w as a d d r e s s ed to a c c u s ed 2. This w as t he first time she l e a r n ed that a c c u s ed 2 a nd 3 were going to the north. S he w as surprised b e c a u se it seemed to come out of the blue. Later t h at evening, a c c u s ed 6 arrived at the b ar alone. He bought a drink a nd walked about, s he told him t h at a c c u s ed 2 a nd 3 h ad gone to the north. Early on Monday, the 2 0th May, there w as a knock at the door. She opened it a nd found the police outside. The police a s k ed her where a c c u s ed 2 a nd 3 were. She told t h em they w e nt away b ut s he did n ot know whereto. The police informed h er t h at the two were s u s p e c t ed of m u r d e r, t h at this w as a serious crime she should not shield t h e m. She said s he felt t h r e a t e n ed a nd w as frightened. The police arrested h er a nd B a r n a b as a nd took t h em away. She w as interrogated by Inspector U n a n d a po in the car alone. The Inspector took the s t a t e m e n t. She acknowledged the s t a t e m e nt in Court as h e r s. She said everything s he said in the s t a t e m e nt w as the t r u th concerning the events s he h ad seen a nd h e a rd on the n i g h t / m o r n i ng of the 1 8t h/ 1 9th May 2 0 0 2. She said even t h o u gh a c c u s ed 2 h ad thrown h er out of the h o u se she still loved him a nd appreciated the financial s u p p o rt he gave h er a nd the child. She also said a p a rt from the clink of coins, t h at morning which Mrs S a k e us said she h e a r d, she also h e a rd a c c u s ed p e r s o ns talking a nd enquiring a b o ut t he w h e r e a b o u ts of a c c u s ed 1 from time to time. The s u m m a ry of Mrs S a k e us evidence is s u p p o r t ed in different a s p e c ts by a variety of witnesses. The claim t h at w h en a c c u s ed 2 a nd others arrived at 5 am she h e a rd the s o u nd of coins is u n d o u b t e d ly consistent with the evidence of the owner of the Peoples Inn Gambling House no. 2 on the removal a nd theft of a large quantity of coins from the p r e m i s es in the c o u r se of the robbery. Mr Munjaniva said t h at N$44 000.00 ± in $1 coins w as stolen from his B a r / G a m b l i ng House t h at m o r n i ng as well as the s h o t g u n. The g un was perfect a nd in working order w h en he left t h at morning. He recognised the s t u mp r e m a i n i ng as p a rt of t h at s h o t g un w h en it w as s h o wn to him in Court. He looked at it a nd confirmed the serial n u m b e rs as correct. A further two witnesses were called by the State they were Mr P e t r us H a m u p e m be a nd Mr A m u p e m b e. Both said that a c c u s ed 1 w as employed by t h em to drive their taxi, a b l ue VW Golf with a white stripe. They said t h at c o n t r a ry to the a g r e e m e nt with accused 1, he did not s u r r e n d er t he taxi that night at the agreed time at 9pm, nor did he s u r r e n d er the takings for the day. There w as further confirmation of Mrs S a k e u s 's evidence, about large a m o u n ts of coins, in the evidence of S t e p h a n us P a u l u s. The w i t n e ss told the Court t h at a c c u s ed 1 owed h im m o n ey for electricity. On the m o r n i ng of the 1 9th of May 2 0 02 at a b o ut 10am he (accused 1) paid his bill of $ 1 50 in c a sh a nd in $1 coins. He also gave h er an extra $ 50 at a b o ut 10am. I will deal with t he accused's explanations in t u r n, in d ue c o u r s e. B ut my view is t h at it is not j u st a m e re coincidence t h at a c c u s ed 1 and 3 were found with large a m o u n ts of c a sh in $1 coins. F u r t h er s u p p o rt of the presence of $1 coins on a c c u s ed is t he evidence of Inspector Unandapo w ho said t h at on arrest, he found $400 on a c c u s ed 2 a nd 3, in $1 coins and, in a b a nk bag. The m o st telling evidence w as not specifically challenged t h o u gh a denial of the a r r e st at t he particular place a nd premises w as m a d e. That evidence is t h at of the State witness Inspector U n a n d a p o. This shows t h at accused 1 w as a r r e s t ed on 2 0th of May 2 0 02 and w as questioned by Inspector U n a n d a po on 2 1st of May 2 0 0 2. After his rights were given, the a c c u s ed 1 said he n e e d ed a lawyer b ut h ad no money. However he said he w as willing to go a h e ad a nd tell w h at he knew. Inspector U n a n d a po said he took a s t a t e m e nt from a c c u s ed 1 in Oshiwambo a nd t r a n s l a t ed it to English. He t h en read it b a ck afterwards a nd a c c u s ed 1 signed it. The inspector w as criticised for not h a n d i ng a c c u s ed 1 to an i n d e p e n d e nt Police Officer to take the s t a t e m e n t. The Inspector said as accused 1 w as cooperative a nd w as confessing to the offence he decided to go a h e ad alone. Having admitted the s t a t e m e nt during the trial within a trial I have b e en invited to revisit t h at decision a nd reconsider the question of admissibility. I have done so, a nd find no good g r o u nd for revising the earlier ruling. While it is not always desirable to do so, I do not t h i nk t h at there is anything inherently u n j u st in allowing the evidence to be admitted in c i r c u m s t a n c es where the investigating officer t a k es down the s t a t e m e n t, and, in this particular case w h e re he also acted as an interpreter. W h en one is dealing with an a c c u s ed person who is not a simple, illiterate villager, b ut one who is a sophisticated person, a nd one who couldn't be said to have b e en overwhelmed by the c i r c u m s t a n c es in which he found himself, the Court m u st be realistic a nd take those social, a nd economic conditions into effect in coming to the decision. In this case the a c c u s ed w as w a r n ed of his rights very clearly a nd meticulously, there w as no suggestion of any difficulty in u n d e r s t a n d i ng w h at the police officer was saying to the a c c u s e d. This is particularly t r ue in a case where the a c c u s ed is aware t h at he is entitled to be legally represented by a lawyer b ut nevertheless decides to go a h e ad with full knowledge t h at he will be within his rights to s t a nd his ground a g a i n st proceeding further or j u st simply r e m a in silent. In this particular case the r e q u e st for legal a s s i s t a n ce by each a c c u s ed person in t u r n, during the interrogation stage seemed like a singsong. Namibia is a developing country, r e s o u r c es are short a nd the police force is n ot always as well trained as it should be. So allowance, in my view, should be m a de for a situation w h e re a calm environment is created for an a c c u s ed person, in c i r c u m s t a n c es in which he is not overwhelmed or feels t h r e a t e n e d. If the Police Officers p r e s e n t ed with those c i r c u m s t a n c es decide to go a h e ad notwithstanding an earlier r e q u e st for a lawyer's presence, they should feel it within their power to say - the a c c u s ed h as c h a n g ed his mind. So we t h i nk it correct to have decided to proceed. In any event, no reliance w as placed in this trial on the particular s t a t e m e n t, Exhibit W, even t h o u gh the a c c u s ed w as confessing. Looking at all the admissible evidence which t he State a d d u c ed against each accused, there is a great deal of evidence t h at p u ts accused no. at various places which are m a t e r i al for considering w h e t h er or not he w as involved before the robbery. That is sufficient circumstantial evidence in my view from which inferences c an be drawn conclusively. In my view the evidence is reasonable in the circumstances, a nd p u ts a c c u s ed 1 in the vicinity of t he Gambling h o u s e / P e o p l es Inn at the time the robbery took place. I have come to this conclusion after weighing the evidence very carefully a nd after looking at w h at the accused's own account is a nd w h at the accused said he did. The State also called the evidence of one witness Salom W a l e n ga b ut conceded t h at this particular witness w as not altogether perfect, t h at t h e re were some contradictions in his evidence w h e r e as in other a r e as he w as s h o wn to be reliable a n d, a trustworthy w i t n e ss who h ad no axe to grind. • I will first refer to the evidence of the witness Salom Walenga. Although the w i t n e ss does not directly refer to a c c u s ed 1, this witness's evidence is very crucial in this m a t t er in t h at he describes the events t h at h a p p e n ed within the Peoples I nn B ar during the c o u r se of the robbery. That evidence s h o w s, in my view, the fine coordination, the fine planning, the quick arrival a nd the quick get away of the robbers. Clearly a c c u s ed 1 m u st have facilitated the plan a nd the execution of the offences by being available, by furnishing t he m e a ns of getting t h e re a nd getting away as quickly as possible. I will come b a ck to the evidence of Salom Walenga later on. Turning to a c c u s ed l's own evidence. Accused 1 denied t h at he w as p r e s e nt at all at the scene of the commission of t he crime, b ut he did not a nd could not say w h at his m o v e m e n ts were t h at evening other t h an to say t h at t h at night he slept at h is h o me in Windhoek. It is trite t h at t he accused does n ot have to prove his innocence or his alibi. In my view though, w h e re the evidence of w i t n e s s es p u ts an a c c u s ed in various places a nd times t h at m ay be incriminatory against the accused, he would be naive n ot to try a nd get s u p p o rt for his assertion a nd rely merely on a bare denial. The w i t n e s s es called by the State clearly p ut a c c u s ed p e r s on in a situation a nd circumstances entitling the Court to draw certain inferences, which are adverse to him. Mrs S a k e u s 's evidence of his short drop-in on t he group at h er s h e b e en w h e re the other accomplices were calls for an explanation. Her evidence also showed t h at from time to time she h e a rd the n a me of a c c u s ed 1 being mentioned or referred to t h us m a k i ng it m o re pressing for accused to explain himself. Mrs S a k e us knew the a c c u s ed well. She did n ot a p p e ar to exaggerate w h at she h ad to say, a nd she w as s p o n t a n e o us a nd stood up well to cross-examination. Besides this evidence, Mr Engelbrecht who also did not know the a c c u s ed 1 at all, placed the taxi, a blue Golf, at the scene. Further, Accused 1 should have explained why he broke the t e r ms of t he contract between him a nd Mr P e t r us H a m u p e m b e. In a s s e s s i ng the evidence, one c a n n ot ignore the fact t h at a c c u s ed did n ot challenge the claim of Mr P e t r us H a m u p e m be t h at the a c c u s ed h ad no permission to k e ep the VW Golf beyond 9 p m, or for failing to a c c o u nt for the takings t h at day. Besides this, accused 1 gave a shifting account of w h e re he got the $1 coins in the s um of $ 1 5 0 . 0 0. First, he said it w as the proceeds from his pool table, t h en he said it w as the proceeds from the taxi t h at he operated. On a s s e s s i ng the accused's evidence a nd his explanation, the failure to challenge Mr H a m u p e m b e 's evidence m a k es it difficult not to come to the conclusion t h at accused 1 w as indeed part and parcel of the robbery t h at night details of which are in Exhibit W, which is before the Court. I will not go into it. Other t h an to observe t h at he w as p r e s e nt although he did not himself participate in the actual robbery. The evidence entitles the inference t h at he furnished the get away vehicle a nd s u b s e q u e n t ly participated a nd s h a r ed in the p r o c e e ds of the robbery in which at least two of the a c c u s ed p e r s o n s, who participated in the robbery, a re said to have b e en a r m ed at the time. Accused 1 m u st have b e en and, w as fully aware t h at there w as a crime to be committed with the u se of w e a p o ns or a weapon to s u b d ue the p a t r o ns of the Gambling bar. So m u ch t h en for the s u m m a ry of the case of a c c u s ed 1. In conclusion, I have no doubt t h at the State proved e a ch of the four c o u n ts in the indictment beyond reasonable doubt. I will t u rn for convenience, to a c c u s ed no. 4 b e c a u se this w as the order of a p p e a r a n ce by counsel. The State's evidence w as led t h r o u gh Inspector U n a n d a p o, the investigating Officer. Inspector U n a n d a po said a c c u s ed 4 s u r r e n d e r ed himself to t he police w h en the police were m a k i ng enquiries. Inspector U n a n d a po told the Court t h at on the 3 0th of May he interviewed a c c u s ed 4 a nd w a r n ed him of his rights. Accused 4 told him (the Inspector) t h at he w a n t ed a legal practitioner to r e p r e s e nt him b ut h ad no money, in t he light of t h at he would proceed on his own. The inspector said he spoke to a c c u s ed 4 in Oshiwambo, t h at there w as no difficulty with his communication. He took a s t a t e m e nt from a c c u s ed 4, a nd afterwards t r a n s l a t ed it into English, a nd read it b a ck to the a c c u s ed in Oshiwambo. He signed it a nd a c c u s ed 4 also signed it. In his evidence in Court, accused 4 denied the confession. He relied heavily for this a t t a ck on the fact t h at he did not have his lawyer. As I have previously observed in dealing with a c c u s ed 1, while it is better in the interests of fairness, n ot to have the investigating officer acting alone, a nd t h at the practice should not be encouraged, it is the rule t h at an officer belonging to another unit is co-opted into the investigations. The rule m u st be a d h e r ed to a nd respected as m u ch as it is possible to do so. In an imperfect world it is u n r e a s o n a b le to expect perfection at all times. There m u st be circumstances w h e re a s t a t e m e nt m ay be t a k en by an investigating officer on his own w h en he (the officer) is satisfied t h at the accused is fully apprised of his rights, t h at having informed him of his rights, the a c c u s ed m a k es no objection, a nd r e q u e s ts t h at the investigation may proceed. We live in a world where crime is prevalent a nd h as become very complex and, the criminals have become very sophisticated a nd That s t a t e m e nt w as admitted as Exhibit X. Inspector U n a n d a po said sometime later, on the 1 7th of J u n e, he got a m e s s a ge t h at a c c u s ed 4 wished to see him. He booked h im out of the cells. Accused 4 t h en told him that the first s t a t e m e nt he gave to the officer w as not the t r u th so he now wished to give a t r ue account. While giving his evidence, the Inspector said he wished to m a ke a point of correction, that, namely, Accused 4 said, the s t a t e m e nt did n ot contain everything, he now wished to tell the t r u t h. The second s t a t e m e nt is Exhibit Y. Inspector U n a n d a po w as cross-examined a nd criticised for acting not only as an investigator b ut as his own interpreter, a nd for taking down the statement. He w as a s k ed as before, why he did not involve another officer an i n d e p e n d e nt officer in t he investigations at t h at stage. Inspector U n a n d a po said he did not feel it n e c e s s a ry as the a c c u s ed h ad b e en so cooperative. determined. T h us the Court m u st not always s h ut its eyes to the environment in which it operates; even t h o u gh striving to abide by the rule of law. Therefore I see no r e a s on why, in appropriate c i r c u m s t a n c e s, a s t a t e m e nt t a k en from an a c c u s ed p e r s on in those c i r c u m s t a n c es is n ot permitted a nd accepted as admissible in criminal proceedings. I now weigh the evidence as a whole against a c c u s ed 4 a nd consider w h e t h er the case h as b e en established a nd proved beyond r e a s o n a b le doubt. Inspector U n a n d a po a p p e a r ed to w a nt to qualify the evidence he gave a b o ut w h at a c c u s ed 4 told him to justify the r e a s on for his wish to m a ke a second s t a t e m e nt namely t h at he w a n t ed to tell the t r u t h. B ut it would seem t h at the inspector did n ot quite establish w h at he w as setting out to do, to quote from the exact passage in the transcript, at page 981 in the record, line 10, "Answer My Lady accused 4 c a me to me a nd told me t h at the first s t a t e m e nt he gave w as not a t r ue story. He is now willing to confess or to tell me the true story. Question: To which s t a t e m e nt did a c c u s ed 4 refer. Answer, his s t a t e m e nt of the 3 0th of May. He said to me t h at the c o n t e n ts in it are n ot true", t h en went on, after a question,..." My Lady point of correction, the contents in this s t a t e m e nt w h at he told me w as n ot e n o u gh there was some information pending". (Counsel a t t e m p t ed to clarify), a nd said,... "some information", Answer: "that he w as still, he omitted some information so he w as willing now to tell me the t r u th a n d / or to add the t r u th to the other s t a t e m e nt which he said it w as not true." It s e e ms to me looking at t h at p a s s a g e, t h at the a t t e m pt by accused 4 to withdraw his earlier a n s w er on the ground t h at the first s t a t e m e nt w as false, did n ot succeed. Hence, the inspector's a t t e m pt fell short of w h at he wanted to do to complete an incomplete statement. It is clear from t he words u s ed in t h at passage t h at all t h at a c c u s ed 4 w as saying w as t h at t he earlier s t a t e m e nt w as false a nd wished to withdraw it. In t he r e s u lt the p r e s e n ce of the second s t a t e m e nt h as resulted in contradictory evidence in the State's case as p ut forward against a c c u s ed 4. W h e t h er or not, the a c c u s e d 's a t t e m pt was d ue to p r e s s u re t h at a c c u s ed 4 received from his other i n m a t es a nd whom he m ay have incriminated in the first statement, is not clear. Suffice to say, as the State h as sought to p ut forward two versions of the s t a t e m e n ts a nd which cancel e a ch other out, t he question, which one to accept becomes difficult. Apart from t h a t, in the State's case this particular accused person, accused (4), is the least mentioned, least known to Ms S a k e u s. At one point Ms S a k e us said s he didn't know his face as she h ad s e en h im only in prison. Later, she appeared to say she h ad s e en h im from time to time in the b ar in the p a st year, so even this w i t n e ss could n ot give certainty to her claims. Apart from anything else, a c c u s ed 4 t u r n ed up of h is own accord to s u r r e n d er to the police. If a c c u s ed 4 h ad h ad a lot to hide, a nd w as fully involved in the criminal activities c o n d u c t ed t h at night, it is unlikely t h at he would have come forward to face the w r a th of the law of his own accord. Given this state of evidence against this a c c u s ed 4, I am not convinced beyond reasonable d o u bt t h at the State s u c c e e d ed in showing his complicity a nd involvement in the crime. The evidence t h at he w as s e en at the scene, of w h at t he State refers to as the planning stage, at t he Bar is not, in my view, e n o u gh to entitle this Court to infer that, thereafter the a c c u s ed 4 joined the other a c c u s ed p e r s o ns in the criminal activities t h at e n s u ed elsewhere. In the event, I would find t h at the State h as not discharged the b u r d en of proof to s u ch a sufficient degree which is expected in a criminal trial. I will now look at the c a s es of a c c u s ed 5 a nd 6, leaving o ut a c c u s ed 2 a nd 3 to come last, b e c a u se their c a se w as most valiantly fought by their Counsel, a nd the evidence is considerably longer t h an in the other two cases. I now t u rn to t he evidence involving a c c u s ed 5 a nd 6. The State relied on the evidence from a n u m b er of witnesses. Ms S a k e u s 's evidence, which I have already referred to extensively, is very central a nd crucial in these proceedings. Ms S a k e us said t h at accused 5 a nd 6 joined a c c u s ed 2 a nd 3 at h er s h e b e en t h at evening first. She said, there w as a lot of talking a nd no drinking at all. If I m ay comment, t h at evidence m a k es the lack of activity r a t h er curious, as it s h o ws in my opinion, a group of p e r s o ns in e a r n e st discussion a b o ut a t r a n s a c t i on of some moment; why else would y ou go to a s h e b e en a nd j u st sit a r o u nd a nd not talk or drink w h en y ou normally would participate in drinking. Be t h at as it m a y, Ms S a k e us said s he h ad known a c c u s ed 5, at t h at time, for a y e ar a nd a half, a c c u s ed 6, a b o ut a year. The witness Salom Walenga said he k n ew a c c u s ed 5 very well. He said a c c u s ed 5 frequented the People's Bar where h e, Salom Walinga, worked. Sometimes he (accused 5) c a me w i th his girlfriend, Foibe. This p a rt of Mr Walinga's evidence w as not challenged. Indeed a c c u s ed 5 agreed t h at he frequently visited the Bar and, he a nd Salom Walinga b o u g ht each other b e er from time to time. Accused 5 claimed however t h at he w as not there on the night of the incident, t h at he w as out of town. He said t h at Salom Walinga was merely confused in saying t h at he (accused 5) w as at the Bar t h at day. He said t he confusion arose b e c a u se of the frequency of his visits, t h at the witness w as m i s t a k i ng the one day for another. Salom Walinga w as however a d a m a nt t h at a c c u s ed 5 s p e nt t he whole day there a p a rt from a b r e ak sometime during the morning. Walenga said a c c u s ed 5 r e t u r n ed in the afternoon, t h at w h en he r e t u r n ed he w as accompanied by his girlfriend, Foibe. Salom Walinga had no r e a s on to mention a c c u s e d 's p r e s e n ce at the B ar during the daytime. He can only have m e n t i o n ed it b e c a u se it occurred t h at day, t h us it could not be said t h at Salom Walinga m a de the claim to implicate a c c u s ed 5. Surely if Walinga h ad wanted to implicate a nd incriminate t he a c c u s ed in the commission of these crimes, there w as nothing to stop him going t he whole way by putting a c c u s ed 5 at the s c e ne of the crime during the course of the robbery in the evening. The fact t h at he does not do so shows t h at this witness w as reliable a nd t r u s t w o r t hy a b o ut accused 5. Further, Salom Walinga w as not alone in putting a c c u s ed 5 at the Bar or in Windhoek t h at day. F u r t h er he w as corroborated in the evidence by Ms S a k e u s. I have already referred to h er evidence, as far as accused 5 is concerned. Ms S a k e us is not likely to have been confused a b o ut the a c t u al date w h en she last saw a c c u s ed 5, as she was a r r e s t ed a couple of days later after the police called at h er h o me in the early h o u rs of the following morning. On being questioned, s he h ad a c h a n ce to reflect u p on the events t h at h ad t r a n s p i r ed a m e re m a t t er of h o u rs before. She w as not being a s k ed to look back over a week or more a b o ut w h at h ad t r a n s p i r ed on t he night of t he 1 8t h. It is from t h at evidence t h at I find t h at a c c u s ed 5 w as clearly lying a b o ut his alibi in which he denied t h at he w as in Windhoek at all t h at day. T h u s, it follows t h at the evidence of his girlfriend Foibe, before t he Court is not correct. Helen Ingono (Foibe) told the Court t h at a c c u s ed 5 left for Walvis Bay on the 1 0th of May 2004 a nd she left on the 1 6th of May to go to Owamboland. Ms Ingono's evidence w as unfortunately r e n d e r ed of little value by the fact t h at she h ad b e en allowed to sit in court during Court proceedings for a good deal of the time, over the m a ny m o n t hs in which the trial lasted. Apart from h er obvious bias in favour of accused 5, by trying to s u p p o rt h er boyfriend, little weight is b o u nd to be a t t a c h ed to h er evidence as s he h ad listened to the d i s c u s s i o ns in court. She w as t h us aware of the i s s u es a nd some of the evidence which h ad b e en given. With regard to a c c u s ed 5 a nd his w h e r e a b o u ts on the 1 8t h, w h en asked, he said he couldn't r e m e m b er w h e re he w a s, a nd explained that he is a s a l e s m a n, he sells perfumes a nd travels a lot. I accept t h at a travelling s a l e s m an of t h at n a t u re might not know exactly where he w as selling his m e r c h a n d i se in a town or city. However one would expect t h at s u ch s a l e s m en would know or r e m e m b er w h e t h er he w as in Windhoek or at the coast, in Walvis Bay or S w a k o p m u n d. In my view a c c u s ed 5 w as deliberately evading facing up to the t r u th a b o ut his m o v e m e n ts on the night of the 1 8th of May 2002. In support of the case t h at he was a s s a u l t ed by Inspector U n a n d a po a nd Sergeant Ndikoma, a c c u s ed 5 pointed to t he medical evidence which is before the Court. He said t h at he s u s t a i n ed a swelling in his testicles, which w as m u ch smaller now t h an at t h at time in the days or weeks immediately after the assault. He said he h ad difficulty even wearing his jockey u n d e r p a n ts a nd h ad t a k en to wearing boxer s h o r t s. F u r t h er evidence w as led, ie of Nurse Phillemon. Doctor Fortch w as called by the Court. Reliance was placed by a c c u s ed 5 on t h at evidence as it confirmed the p r e s e n ce of a swelling in the testicles. The major difficulty with t h at evidence, in my view, w as t h at a c c u s ed 5 w as only s e en by Nurse Philemon almost four m o n t hs after the events which he claimed h ad c a u s ed t h at injury. It is common c a u se t h at accused 5 was seen on the 1 0th of September 2 0 0 2. Doctor Fortch only examined him at the r e q u e st of the C o u rt with his consent, during t h e se proceedings. T h us the m a t t er of when, how or where the a c c u s ed s u s t a i n ed the injury is left in doubt, a nd leaves the evidence of the a c c u s ed on its own, regarding the c i r c u m s t a n c es a nd place w h e re he suffered t h at injury, if it w as an injury. Ms Ingono (Foibe) supported the a c c u s e d 's claim a b o ut t h at injury i n a s m u ch as she said accused 5 complained to h er w h en s he visited him in custody. He told her, she said, t h at he h ad b e en a s s a u l t ed a nd kicked by the police a nd suffered a b r u i se in h is testicles. He r e q u e s t ed h er to buy him some Panado a nd s he b o u g ht two p a c k e ts a nd gave t h em to him. The evidence of Nurse Phillemon a nd Doctor Fortch showed t h at t h at type of swelling or h a e m a t o ma m ay be c a u s ed or m ay result from m a ny other c a u s e s. Both gave i n s t a n c es to the Court. The evidence t h us r e n d e rs the a c c u s e d 's a c c o u n t, already w e a k e n ed by the delay in which it w as independently a nd objectively verified, medically, even more doubtful, in my view, to the extent t h at the Court would find it difficult to say t h at there might possibly be some t r u th in his claim. Further, the State's evidence is t h at after a c c u s ed 5 w as interrogated by Inspector U n a n d a p o, he w as t a k en to Chief Inspector Becker to m a ke a confession. W h en cross-examination ensued, C o u n s el for a c c u s ed 5 tackled Inspector U n a n d a po a nd p ut to t he Inspector that...,"could y ou have s u r r e n d e r ed accused 5 within 10 m i n u t es of the cessation of your interrogation for instance?" C o u n s el dwelt on this 10 m i n u te point. The Court wondered w h e t h er it w as p a rt of a c c u s e d 's case t h at he was t a k en to Inspector Becker almost immediately afterwards. However, it b e c a me a p p a r e nt t h at Counsel w as doing no more t h an fishing as, later on in the proceedings Counsel p ut it in t e r m s, to Inspector U n a n d a po t h at a c c u s ed w as t a k en to Inspector B e c k er m u ch later, n a m e ly a b o ut 7 h o u rs afterwards. However, inspector U n a n d a p o, however said he simply didn't know a nd couldn't r e m e m b er w h e t h er he took the a c c u s ed to the Inspector immediately afterwards or w h e t h er the a c c u s ed h ad h ad to wait, in which case he would have been sitting in the corridor which is p a rt of his office. He w as a d a m a nt t h at he never, at any time, a s s a u l t ed a c c u s ed 5. He denied also t h at Sergeant Ndikoma h ad also a s s a u l t ed h im with fists or kicked him in the testicles after the a c c u s ed w as felled down by a fist blow. He denied t h at the swelling r e s u l t ed from s u ch blow. If the a c c u s ed h ad b e en a s s a u l t ed in the m a n n er he claims to have been I d o u bt t h at he would have b e en able to s t a nd up straight, able to walk. Yet, a p p a r e n t ly he walked with little difficulty and, normally, to get to t he Inspector's office to have his confession t a k e n. I d o u bt too w h e t h er in t h at state a nd condition he would have b e en able to dictate 6 p a g es of the account, or, on his new version, to r e m e m b er the c o n t e n ts which were dictated to him by Inspector U n a n d a p o. If a c c u s ed h ad been so severely beaten, one would have expected signs of injury or, u n e a s e, at t he time t he confession w as t a k e n. Inspector Becker said t h at there were no signs of injury on the accused, t h at a video recording which he h ad t a k en shows a normal, comfortable individual sitting comfortably w i t h o ut any signs of distress. Counsel for a c c u s ed 5 s u b m i t t ed t h at accused m ay have p ut on a brave face b e c a u se of the p r e s e n ce of c a m e r a s, t h at he may have t h o u g ht t h at the Namibia Broadcasting Corporation was filming the process so he would not w a nt to a p p e ar otherwise t h an his cheerful a nd n o r m al self. I note Counsel's ingenuity in this explanation, I d o u bt t h at the a c c u s ed would have entertained t h o se t h o u g h ts at the time, if only for the s a ke of the television c a m e r a s, if h e, indeed h ad been in s u ch p a i n. Inspector Becker said he w as very careful w h en he interrogated the a c c u s ed to e n s u re t h at he u n d e r s t o od a nd w as fully aware of his rights. He said he even w e nt beyond the c o n t e n ts of the pro-forma which is u s ed on s u ch occasions w h en explaining the accused's rights. He said in this case he did so, particularly, in view of t he claims of a s s a u lt t h at a c c u s ed w as m a k i ng against the investigating officer. The Inspector said, having given h im his rights, a nd w a r n ed him t h at he need not go a h e ad with giving the s t a t e m e nt the accused elected to do so. I have read a nd looked at the long s t a t e m e n t, as Exhibit R. I am i m p r e s s ed by its c o n t e n ts a nd its detail. The sequential a r r a n g e m e n ts of the events reflect a calm a nd collected mind, able to focus on w h at he w as saying. The s t a t e m e nt fills in a lot of g a ps in the m o v e m e n ts of accused 5 a nd his accomplices. It couldn't possibly have b e en an invention or something he h ad h ad to c r am into his h e ad in the course of being severely a s s a u l t e d. Accused also said t h at he h ad a n o t h er source for the c o n t e n ts of the document, ie w h at he h ad read in the n e w s p a p e r s. W h en he w as asked a b o ut details, the n e w s p a p er w as p r o d u c e d. The article referred to only mentioned a robbery, the killing a nd the s um of money involved. Those few points c an hardly have occupied 6 h a n d w r i t t en p a g es of a s t a t e m e n t. Having regard to all t he evidence led, I have no d o u bt whatsoever t h at the State h as proved completely a c c u s ed 5's participation in the commission of the crimes on the night of the 1 8th of May 2002 with full knowledge. T u r n i ng to accused 6. According to Ms S a k e u s, a c c u s ed 6 w as k n o wn to her for about a year a nd w as p r e s e nt at h er s h e b e en on t he evening of the 1 8t h, there he joined a c c u s ed 2, 3 a nd 5. I have already referred to Ms S a k e u s 's evidence t h at there was no c o n s u m p t i on of alcohol t h at they j u st talked asking questions from time to time a b o ut t he w h e r e a b o u ts of a c c u s ed 1. The State h as argued t h at w h at was being done in the shebeen, h o u rs before the robbery w as the planning a nd putting into place t he n u ts a nd bolts of the robbery a b o ut to be committed. The conclusion in my view, s e e ms perfectly r e a s o n a b le a nd compelling as the only inference to draw. Why, would six m en sit in a s h e b e en for h o u rs on end without p a r t a k i ng in any alcoholic consumption, t h en leave in the d e ad of night to go to town, as related by Mrs S a k e u s '. It is c u r i o u s. It is without d o u bt t h at accused 1 called to check on the state of p r e p a r e d n e ss of the accomplices a nd check on t he p l a n s. Apart from the evidence concerning a c c u s ed 6, there's the evidence of Ms S a k e us that, the following evening, a c c u s ed 6 called again at h er shebeen, t h at he w as alone a nd h ad a drink while walking about. She said she approached him a nd told him t h at a c c u s ed 2 a nd 3 h ad gone to the north of Namibia. B ut it r e m a i ns strange that an a c c u s ed (6) who h ad b e en p a rt of a robbery a nd m u r d er a few h o u rs before, was m a k i ng himself so visible at a public place, a nd the place where he h ad a meeting with his accomplices before the robbery. The presence of a c c u s ed 6 at the s h e b e en t h at early evening is in s h a rp contrast to t he behaviour of his accomplices. For i n s t a n ce the rapidity with which a c c u s ed 2 a nd 3 got away from t he s h e b e en t h at m o r n i ng ie as soon as they could. T h at is very different, it is more c o n s o n a nt with the actions of a criminal who w a n ts to slip away while the s c e nt dies down a nd to emerge only w h en it seemed quiet and safe to do so. Accused 6 s e e ms to portray a naive a nd c u r i o us individual. Did he w a nt to know, p e r h a p s, what h ad h a p p e n ed to the p l a ns of t he previous day? This is arguable. Apart from this, a nd unlike the others, a c c u s ed 6 never m a de any confession to the police. In his evidence, a c c u s ed 6 gave varying accounts of where he was on the 1 8th - 1 9t h. First, he said he was not s u r e, b ut thought he w as in Windhoek - sleeping at his H a k a h a na home, t h en he said he w as at Farm, Asaria where he w as employed. The State disproved his evidence a nd questioned his alibi. It w as t h en established t h at accused 6 did n ot s t a rt work at F a rm Asaria until the 2 6th of May. Accused explained t h at he h ad m a de a mistake a b o ut t he dates. In my opinion it is reasonably possible t h at a m an who feels innocent of w h at is being alleged especially w h en w h at is alleged is a serious crime yet is aware t h at there is something in his m o v e m e n ts t h at might be held against him, n a m e ly t h at he w as p a rt of the appropriation a nd planning of the criminal enterprise. Even t h o u gh t h at fear m ay be slight, the a c c u s ed p e r s on may feel t h at he needs to do m o re to establish his innocence by inventing, say, a false alibi t h at t a k es him away from the scene of the crime, in the belief t h at a bare denial would not suffice or carry conviction a b o ut w h at he w as saying. In t h at state of m i nd he t h us comes to t he conclusion t h at t he b e st thing to do is to pretend t h at he w as elsewhere, even t h o u gh t h at w as utterly false. In this case I am of the view t h at the State h as not led sufficient evidence to prove beyond reasonable d o u bt t h at once a c c u s ed 6 a nd the group left t he s h e b e en t h at night he h ad proceeded with t h em to the scene of the crime, b e c a me p a rt a nd parcel of t he crime, t h at the participation w as with full knowledge of t he n a t u re of the w e a p o ns carried and, t he objective of the enterprise to steal money from the p a t r o ns at the People's Bar. In the result, I find the case for the State is not sufficiently a nd adequately proved for t he p u r p o s es of a criminal trial. I t u rn finally to a c c u s ed 2 and 3. I will deal with t h e se two c a s es together wherever there is common g r o u nd a nd wherever possible. The State h as placed great reliance on the evidence of Ms S a k e u s. Ms S a k e u s' incriminatory evidence w as u n d o u b t e d ly against h er own interest. Though h er evidence is largely circumstantial the inferences to be d r a wn from it are compelling a nd exclusive. The assertion during cross- examination t h at she still loved Accused 2 even t h o u gh he h ad thrown h er o ut of their home, c a me over as truthful, simple a nd h o n e s t. Her declaration t h at she w as financially d e p e n d e nt on a c c u s ed 2, t h at he h ad been fully supportive of h er a nd t he child m e a ns t h at a conviction, if one may to result, will deprive h er of h er support. The acceptance of t h at c o n s e q u e n ce tells j u st how h o n e st a nd trustworthy Ms S a k e u s 's evidence w a s. There is no d o u bt t h at accused 2 w as lying in his evidence w h en he claimed t h at he left for Ovamboland some days before the incident a nd w as n ot therefore in Windhoek on the day of the commission of the offences. Clearly too, h is younger b r o t h er w as lying. B a r n a b as h ad been called by the State b ut his evidence contradicted his s t a t e m e nt a nd the evidence of Ms S a k e u s. I prefer the version a nd a c c o u nt of Ms S a k e us to t h at of B a r n a b a s. Ms S a k e us said how very surprised she w as w h en a c c u s ed 3 revealed t h at they were a b o ut to depart for t he n o r th as s he w as making t h em breakfast. I agree with the State's view t h at the inference t h at it became necessary for a c c u s ed 2 a nd 3 to get out of town as quickly as possible after the events of the previous night is inescapable. The a c c u s ed w as b o u nd to try a nd e s c a pe t he consequences of his actions. Both a c c u s ed p e r s o ns denied the contents of their s t a t e m e n t s, I h ad ruled t h e se admissible earlier on. In addition both a c c u s ed challenged the fairness of the evidence of pointing out. W h at did not a p p e ar to be challenged w as the evidence of Inspector Viljoen. He said on the 1 9th of J u ne 2 0 02 he took both a c c u s e d, each in t u r n, to the People's Bar, t h at in there e a ch a c c u s ed pointed out various positions within t he People's B ar a nd i Gambling Inn. Inspector Viljoen, like Inspector Van Zyl, said he did w a rn the accused of their rights and, their entitlement n ot to go out for a pointing out. Both a c c u s ed p e r s o n s, however deny t h at they were arrested in c i r c u m s t a n c es which t he State h as described. They each claimed t h at they were a r r e s t ed in Okahandja. As part of its case the State p r o d u c ed p h o t o g r a p hs t a k en after the accused's arrest, the photo shows a zinc metal h o u se and, inside, the b a se of a bed showing a hole where the a c c u s ed were found hiding. The accused denied t h at they were found t h u s. It is inconceivable however t h at the State would have gone to s u ch great lengths as to set up a fictitious scene of s u ch detail. There is no d o u bt in my mind t h at the probabilities are a g a i n st s u ch a suggestion, the suggestion is as farfetched as t he evidence of the a c c u s ed persons is. Further, the State relies on t he evidence of the w a r n i ng s t a t e m e n t s. The s t a t e m e n ts are on record, I need not s et t h em out. Both a c c u s ed p e r s o ns gave conflicting r e a s o ns to s u p p o rt their objections to the evidence of the w a r n i ng s t a t e m e n t s. The contradiction in each is material a nd goes to the h a rd core of the issues. The challenge to the admissibility of s t a t e m e n t s, during t he trial within a trial, w as on the ground t h at Inspector U n a n d a po a s s a u l t ed the a c c u s ed for days before taking t h em to m a ke s t a t e m e n ts in front of Inspector B r u n e. When giving evidence in the m a in trial, both accused, in t u r n, claimed t h at the contents of the s t a t e m e n ts were n ot theirs, t h at they were dictated to t h em by Inspector U n a n d a p o, who told t h em to go a nd repeat the details to Chief Inspector B r u n e. The omission to p ut this to the State witnesses resulted in the failure by Defence Counsel to cross-examine Inspector U n a n d a po on t h at b a s i s. It is quite unlikely t h at Counsel of s u ch experience would have confused the one ground for t he other if the latter defence h ad been raised. I find t h at the claims of a s s a u lt with a view to making t h em m a ke s t a t e m e n t s, or t h at the c o n t e n ts of the s t a t e m e n ts were dictated by Inspector U n a n d a po is n ot at all credible. The claims can't possibly be true. In regard to t he evidence t h at a c c u s ed 2 h ad a spot of blood on his T-shirt as a result of the a s s a u l t, a nd a bruise on top of the head, t h at evidence does not t a ke the Defence case far. As Chief Inspector B r u ne said, the slight injury w as on top of the head, while Accused 2 claimed t h at he w as b e a t en a nd suffered an injury to the eye a nd the face. He said t h at t h at injury was bleeding a nd t h us resulted in t he spots of blood on his T-shirt. Chief Inspector B r u ne however said he inspected t he a c c u s ed for any injury or swelling, a nd he found none, a p a rt from w h at he h ad already described to the Court. As regards the a s s a u l ts on the chest, Inspector B r u ne clarified his evidence to the extent t h at he said having found no b r u i se he a s k ed the a c c u s ed to raise his T-shirt t h at the inspection revealed nothing. He said, it m ay well h a p p en t h at a p e r s on is a s s a u l t ed b ut no external bruising results a nd only i n t e r n al injuries. He said even then, some kind of swelling would have b e en evident from the outside, even on a visual inspection. So the evidence of the source of t he spots of blood is u n c l e a r. F u r t h er there is no knowing how old those blood spots were or where they could have come from? The accused's explanation clearly h ad no b a s is b e c a u se if t h e re h ad been a c ut on t he eye which h ad c a u s ed blood to flow the skin would h a ve b e en broken. S u ch an injury would have b e en easily visible to Chief Inspector B r u n e. The Chief Inspector's final word w as t h at t he a c c u s e d 's face was perfectly normal, t h at there w as neither a bruise n or a cut. T h en t h e re came a stage in t he cross-examination of Chief Inspector B r u ne in which the Chief Inspector w as invited to speculate a b o ut the r e a s on why it took from 16:30 to 2 0 : 35 pm to conclude the s t a t e m e nt of a c c u s ed 3. W h e r e as t he Chief Inspector said t he interview could have lasted for half an h o ur only, b ut said he couldn't remember, he w as cross-examined time a nd again a nd a s k ed to concede various possibilities. At the e nd of m a ny questions, the speculation c h a n g ed into positive evidence a nd the Inspector a p p e a r ed to a c c e pt the a c c u s e d 's propositions as p ut to him by Defence Counsel, I quote from a passage in the record, "Question. Well you would not be in a position (to) dispute it if I put it to you that it's my instruction from the accused that the first time he was into your office, he informed the Interpreter that he doesn't want to give the statement without his lawyer. Yes. And then you said. Okay. In that case then I will leave you here alone. Would you be in a position to dispute that? It is quite possible, S i r ." This is a typical example of what h a p p e ns in cross-examination w h en a witness is questioned time a nd again, and, even though he says, he cannot remember, it is p ut to him t h at it is possible. Thereon possibilities are continuously p ut to t he witness, the witness explains the general practice which is adopted in situations s u ch as t h at u n d er cross-examination. The a c c u s ed p e r s o n 's case is t h en p ut to him a nd the witness having said, it might be possible, t u r ns a r o u nd a nd says, yes. Cross- examination of this n a t u re becomes misleading, it should not be encouraged. Cross-examination is an essential w e a p on in the adversarial system of justice. It is i n t e n d ed a nd designed to test the o t h er side's witnesses. To be of a s s i s t a n ce to the Court, cross-examination m u st r e m a in fair to the witness. I a d m i t t ed the warning s t a t e m e n ts a nd ruled t h em admissible b e c a u s e, in my view the Court h as to be realistic w h en dealing with, largely sophisticated individuals who are well aware of their rights. As I have previously observed, c o m m on sense should not be thrown out of the window. T h us I reject entirely the claims that the a c c u s ed p e r s o ns were viciously a s s a u l t ed by Inspector U n a n d a po who t h en took t h em to Chief Inspector B r u ne to record confessions. Inspector U n a n d a po would have k n o wn w h en sending the s u s p e ct to a senior officer t h at a b r u t al a s s a u lt would leave telltale m a r ks on the body. So it would be risky in t he c i r c u m s t a n c e s, a nd w as b o u nd to result in a rejection of any confession t h at m ay e n s u e. As it h a p p e n e d, in this particular case the Chief Inspector said he inspected the a c c u s ed p e r s o ns for m a r ks a nd injuries as a r e s u lt of their complaints. He said he found n o ne except those already indicated. I t u rn to consider the evidence of pointing out. Accused 2 a nd 3 in t u r n, complained t h at they were a s s a u l t ed by Inspector U n a n d a p o. In the case of a c c u s ed 2 it w as said the Inspector carried out the a s s a u lt in the company of S e r g e a nt Ndikoma a nd a n o t h er officer. Both a c c u s ed claimed t h at they were shown the place to point o ut by the Inspector on t he previous day, t h at they were t h en told to indicate the place to the Chief Inspector the following day. Inspectors Van Zyl w as assisted by Constable Iyambo. He said w h en the accused told t h em a b o ut the a s s a u l ts they a s k ed the a c c u s ed to strip, so they could check for injuries, n o ne were found. The Chief Inspector said he particularly w a r n ed the a c c u s ed about his right to r e m a in silent and, t h at he w as entitled to say no to going for indications or pointing out, t h at the a c c u s ed agreed to go a h e ad anywhere, a nd w as cooperative. F u r t h er the a c c u s ed a s s u r ed the Chief Inspector t h at he w as acting freely a nd voluntarily, not as a result of t he a s s a u l t. Thereafter the pointing o ut ensued. The Chief Inspector t h en gave a very detailed a c c o u nt of w h at the a c c u s ed said, how the a c c u s ed directed t h em to this or t h at spot. The Chief Inspector w as very convincing w h en he said t h at t h o u gh a c c u s ed p e r s on h ad m a de a complaint of assault, once the Chief Inspector h ad r e p e a t ed his rights, the a c c u s ed elected to go a h e ad with the pointing out. He said it w as as a result of the pointing o ut by a c c u s ed 2 t h at the Markorov pistol w as found. Accused 2 said in his evidence t h at he h ad been told by Inspector U n a n d a po w h e re to go w h en he took him o ut t he previous day. Accused 3 also said t h at Inspector U n a n d a po took him to t he scene on the previous day. Later however, a c c u s ed 3 c h a n g ed his m i nd a nd said t h at although Inspector U n a n d a po took h im to the scene, they did n ot get into t he Bar b e c a u se it w as locked, b ut it w as Inspector Viljoen who took him the following day told him w h at to point out, a nd w h e re to go. He said Constable H a r a s eb w as also there at the time. None of this evidence w as p ut to t he Inspector or Constable H a r a s e b. My view, having regard to all the evidence, is t h at a c c u s ed 2 a nd 3 a re m a k i ng up their c a s es as they go along. There can be no d o u bt t h at a failure to p ut to a w i t n e ss evidence which is crucial is a denial of a c h a n ce for t he other side to deal with their opponent's case. The omission to do so is prejudicial to t h e m. In the case of Small v Smith 1954 (3) SA 4 34 (SWA) t he Court said t h a t: "It is grossly unfair and improper to let a witness evidence go unchallenged in cross-examination and afterwards argue that he must he disbelieved." I entirely agree a nd e n d o r se those r e m a r k s. As I previously observed t he chops a nd c h a n g es in the story of a c c u s ed 2 a nd 3, as well as the last m i n u te addition to the instructions, a re all symptomatic of the story t h at h as no foundation in t r u t h. Besides, t h e re is a m u l t i t u de of corroborative evidence a b o ut the complicity a nd involvement of a c c u s ed 2 a nd 3 in the crimes committed on t he 1 8t h. In t he case of a c c u s ed 3, his p r e s e n ce at the s c e ne w as confirmed by a witness who was in t he People's Inn Gambling Bar. Salom Walinga said he told t he police t h at he could recognise a c c u s ed 3. This claim a d ds to the evidence of a get together at t he planning stage earlier. That evidence of t he events of the evening in my view is overwhelming. F u r t h e r, Salom Walinga identified accused 3 at an identification p a r a d e. The identification p a r a de which w as very properly r un by Chief Inspector Sass ie in accordance with the r u l e s. Walenga h ad no difficulty in picking out Accused 3. The identification evidence was criticised. The defence's claim is t h at a c c u s ed 2 w as t a k en back to t he s a me room where he h ad b e en waiting before the p a r a d e, t h at the n e xt witness w as still present. It was argued t h at this w as unfair. I am n ot swayed by the claim, there is no s u b s t a n ce in it all. All t h at a p p e a rs to have b e en done, if it w as done, a nd which Inspector U n a n d a po denies, is t h at Walinga w as t a k en u n d er escort from the p a r a de to the previous room where Martin, now deceased, was. B ut on t he defence's claim at the time Martin w as on the way out to t he parade. T h us t h e re is no suggestion t h at there was any communication b e t w e en t he two witnesses, as the one entered the other left. It w as p ut to Walinga t h at he w as m a k i ng up the s t a t e m e nt t h at he h ad told t he police before t he p a r a de t h at he could identify accused 3. Walinga however said t h at he w as s u r p r i s ed as to how t he police came to m i ss out t h at p a rt of the evidence. As regards the criticism a b o ut t he omission, it is k n o wn in t he Courts t h at shortfalls in police interrogation a nd taking down of s t a t e m e n ts do occur. S t a t e m e n ts a re not always complete, nor should they be expected to contain everything t h at a w i t n e ss h as said. This observation was m a de in S v Hanekom No. 4 2001 (Supreme Court) by the t h en Chief J u s t i c e, Chief J u s t i ce Strydom. Apart from this, t he State fairly conceded t h at the evidence of Walinga w as not always perfect b ut w as sometimes confused a nd contradictory. It is not in dispute, a nd is on record t h at Walinga w as u n d o u b t e d ly confused at times w h en he said Inspector U n a n d a p o, for instance, showed him the firearms t he day he went on p a r a d e. That could not have b e en t he c a se b e c a u se the firearms according to evidence in Court were only found on the day of the pointing out, namely in the p r e s e n ce of Chief Inspector Van Zyl. At t h at time Inspector U n a n d a po w as nowhere n e ar t he scene. If one were to accept Walinga's evidence on this point it would m e an t h at the police h ad s e t - up a fake a nd complex piece of evidence, away from the police station simply, to implicate the a c c u s ed person. The suggestion is farfetched a nd implausible. The confusion in Walinga's evidence is u n d e r s t a n d a b l e. The ordeal t h at he m u st h a ve u n d e r g o ne on the night of the robbery w as considerable. At t he time of the interview he w as not long s e p a r a t ed from the events. T h us allowance should be m a de for t h at c i r c u m s t a n c e. Regarding the evidence of identification, the Court h as w a r n ed itself of the n e ed to be cautious. Therefore I have weighed t he evidence a d d u c ed by the State especially, in the light of those a s p e c ts of Walinga's confused evidence. Having done so I am satisfied beyond d o u bt t h at t h at evidence w as t r ue a nd correct. The evidence of Inspector Van Zyl of the pointing o ut is on record a nd is sufficient s u p p o rt to confirm t h at it w as as a r e s u lt of the pointing o ut the firearms including the s h o t g un were discovered. I have also referred to the evidence of Inspector Viljoen. He w e nt on indications on the 1 9th of May with the two a c c u s e d. On r e t u r n i n g, after warning t h e m, the two m a de various indications within the B a r / G a m b l i ng h o u s e. Apart from t he evidence of identification by Walinga, t he evidence of t he State is largely c i r c u m s t a n t i a l. In coming to t he decision w h e t h er or not t he State h as proved its case beyond reasonable d o u b t, I have to weigh all the evidence a nd decide w h e t h er or n ot t he inferences to be d r a wn are consistent with the proved facts a n d, are t he only r e a s o n a b le inferences t h at c an be drawn: R v Blom 1939 AD. I have no d o u bt in my mind t h at t he State h as proved its case beyond r e a s o n a b le doubt. The decision is s u p p o r t ed by overwhelming a nd incriminating evidence a g a i n st the accused p e r s o n s, t h us leading to t he conclusion as t he only one t h at e a ch particular a c c u s ed w as p a rt a nd p a r c el of t he robberies a nd m u r d e r, as well as t he s u b s e q u e nt a t t e m pt to try and dispose of t he w e a p o ns - either by hiding t h em or b u r n i ng them. It is trite t h at this Court m u st not throw away c o m m on s e n se a nd require t he State to close every a v e n ue of escape t h at m ay be open to t he accused. It suffices t h at t he State h as a d d u c ed evidence of s u ch a high degree of probability t h at a r e a s o n a b le m an may, after consideration, conclude t h at t h e re exists no reasonable d o u bt t h at an accused p e r s on h as committed the offence: See S v Rama 1966 (2) SA 3 9 5. I find therefore t h at accused 1, 2, 3 a nd 5 acted together a nd in concert, a nd were present, a nd participated in t he offences t h at were committed at t he People's Bar Gambling H o u se No. 2 on t he night or early morning of t he 1 8th - 1 9th of May 2 0 0 2. As to the question of intent, evidence w as led t h r o u gh Doctor S h a n g u la who carried out the p o s t - m o r t em examination on t he deceased, Nghatanga. As t h e re w as no challenge by t he accused p e r s o n s, I shall simply s t a te t h at t he Doctor found t h at t he bullet which killed the deceased w as fired in a horizontal projection a nd w e nt t h r o u gh one set of ribs a nd exited on t he opposite side t h r o u gh the ribs, t h en rested inside t he skin. I find t h at there is no reasonable possibility whatsoever t h at t h at bullet could only have been fired from an u p w a r d / d o w n w a r ds position as suggested in one of the confession s t a t e m e n t, n a m e ly t h at it w as a ricochet bullet which the a c c u s ed fired in the air. F u r t h e r m o r e, from the evidence the bullet w as fired at close range, a b o ut 3 m e t r es away from the deceased. Firing at a p e r s on at s u ch close range with a firearm directed to t he m o st vulnerable p a r ts of the body c an only lead to one conclusion, n a m e ly t h at the p e r s on firing the shot intended to kill his victim. The a c c u s ed p e r s o ns p l a n n ed together, went together a nd were well aware t h at at least two of t h em were armed with w e a p o n s. The failure to dissociate themselves from the p l a ns or with the activities once inside, s u ch as w h en t h r e a ts were m a de a nd money t a k en from the p a t r o ns or owners m a k es all t he a c c u s ed guilty of the acts perpetrated. Ample evidence of p o s s e s s i on by a c c u s ed 1, 2 a nd 3 of $1 coins, which could only h a ve b e en p a rt of the proceeds of the robbery, h o u rs later, finally nails the coffin against all. Accordingly I find as follows: In c o u nt 1 of m u r d e r: Accused 1, 2, 3 a nd 5, I find guilty with intent to kill. Accused 4 a nd 6, are found not guilty. With regard to c o u nt 2, a nd 3, of robbery with aggravating c i r c u m s t a n c e s: Accused 1, 2 3 a nd 5, are found guilty of robbery in aggravation c i r c u m s t a n c e s. Accused 4 a nd 6 are acquitted. With regard to c o u nt 4, defeating or obstructing t he c o u r se of j u s t i c e. Accused 1, 2, 3 a nd 5 are found guilty on the m a in c o u nt a nd acquitted on the alternative c o u nt of malicious d a m a ge to property. , • Accused 4 a nd 6 are acquitted. Accused 4 a nd 6 are acquitted a nd discharged on all t he c o u n t s. GIBSON, J. ON BEHALF OF THE STATE Ms R Gertze Instructed by: Office of t he Prosecutor-General ON BEHALF OF ACCUSED NO. 1 Mr C Mostert ON BEHALF OF ACCUSED NO. 2 & 3 Mr B B a s s on ON BEHALF OF ACCUSED NO. 5 Ms L H a m u t e n ya Instructed by: Directorate of Legal Aid IN THE HIGH COURT OF NAMIBIA CASE NO. (P) I 146/2000 In the matter between: GERSON HOVEKA t /a HOVY NAMIBIA Plaintiff TOUR AND SAFARI Versus FGI NAMIBIA LTD CORAM: MARITZ, J. Heard on: 2 0 0 0 / 0 9 / 02 Delivered on: 2 0 0 2 / 0 1 / 31 JUDGMENT Defendant MARITZ, J.: The crisp issue to decide in this action for payment of indemnification under an insurance agreement is whether the defendant is exempted from liability because the person who had driven the insured vehicle "was not licensed to drive such vehicle" (as contemplated in clause 1(c) (ii) of the "Specific Exceptions" of section 17 of the Multimark