S v Mwinga and Others (1) (CC 64 of 1994) [1994] NAHC 10 (12 October 1994)

THE STATE vs POSTRICK MWINGA & 4 OTHER CC 64/94 1994/10/12 Teek J CRIMINAL LAW Murder - attempted murder alternatively negligent handling of fire-arm and assault. Accused were members of Nampol attached to Crime Prevention Unit. Openend fire from Namibian side at canoe on Zambian side. Shot and killed passenger in canoe. Point in limine raised: Court had no jurisdiction to hear and adjudicate upon murder charge because state could not prove beyond reasonable doubt that the bullet struck the deceased or that the deceased died on this side of the Namibian border. Held: Court no extra-territorial jurisdiction conferred upon it either by Statute or the Common Law to hear a murder case which was not committed within the borders of Namibia, or where it is not proved that the harmful effect or consequence, i.e. death, occurred within our borders. CASE NO. CC 64/94 IN THE HIGH COURT OF NAMIBIA In the matter between THE STATE versus 1. POSTRICK MWINGA 2. RICHARD SIBIHO 3. BRIAN NYOKA SALUSHANDO 4. CLEMENT NCHINDO 5. BONIFACE SIMASIKU CORAM: TEEK, J. Heard on: 3i<\''I"/< ^> Delivered on: 1994.10.12 JUDGMENT ( TEEK, J.: The five accused before me who are Namibian Citizens are charged with 4 crimes, namely murder, attempted murder alternatively negligent handling of fire-arm and two counts of assault. All the accused who are represented by Mr Heathcote, pleaded not guilty to the charges. The prosecution is conducted by Miss Winson. At the outset of the proceedings and after the accused have pleaded, Mr Heathcote raised a point in limine in the form of a plea of jurisdiction submitting that this Court does not have the jurisdiction to hear and adjudicate upon the murder charge, arguing that the State cannot prove beyond reasonable doubt that the bullet struck the deceased or that the deceased died on this side of the Namibian border. This plea of jurisdiction was naturally vigorously opposed by the State, arguing that whether the deceased was shot on this side of the border but died on the other side of the border or whether he was shot and died on the other side of the border, this Court should assume jurisdiction in the interest of justice, if I correctly understood the argument. The State and Defence counsel agreed on the following jurisdictional facts upon which this point should be decided: 1. The shot that struck the deceased was fired from the Namibian side of the River; 2. there is a possibility that 2.1. the bullet struck the deceased on either side of the border; and 2.2. the deceased died on the Zambian side of the border, which implies he could also have died on this side of the border. It appears from these facts that the prosecution is not in a position to prove beyond reasonable doubt where exactly the harmful consequences took effect, whether on this side or the other side of the Namibian border. It is only in the interest of justice in a situation like this where it is unclear where the deceased was killed to give the accused the benefit of the doubt. It appears that the circumstances of this case are such that it is difficult for the prosecution ever to prove where the deceased was killed. In the circumstances, the prosecution is not in a position to discharge the onus incumbent on it to prove beyond reasonable doubt that this Court has jurisdiction in this matter and which was put in issue by the defence. See Du Toit et al, Commentary on the Criminal Procedure Act No 51 of 1977 reference 15 - 11. Section 16 of the High Court Act No 16 of 1990 reads as follows: "The High Court shall have jurisdiction over all persons residing or being in and in relation to all causes arising and all offences triable within Namibia and all other matters of which it may according to law take cognisance and shall, in addition to any powers of jurisdiction which may be vested in it by law, have power ..." Stated brevitatis causa, the powers or jurisdiction conferred by this section are derived from law, that is either from statute for example in connection with offences committed in the air or on the high seas, where the jurisdiction is explicitly conferred by an act of Parliament or the common law. It is evident that no such jurisdiction is conferred upon this Court either by statute or the common law to hear or adjudicate upon a murder committed in a foreign country. In casu we are dealing with murder, which is a result crime as opposed to theft, a continuous crime or any other specified crime. To commit murder apart from the other essential elements one must manifest the intent to kill into the deceased's death. That means the perpetrator's culpable intention must be linked to the deceased's death, i.e. results in death. See Heimstra, Suid-Afrikaanse Strafproses, IV ed. p.257; and S v Mampa 1985 (4) SA 633 at 637. It appears to me from the cases quoted by the prosecution, e.g. S v Mharapara 1986(1) S. A. p.556 (ZSC) in prosecutions against nationals for commission of common law crimes committed outside country's borders, the underlying ratio of principle applied was the approach based on the place of impact of the harmful effect of a crime. In the circumstances, this Court has no extra-territorial jurisdiction conferred upon it either by statute or the common law to hear a murder case which was not committed within the borders of Namibia, or where it is not proved that the harmful effect or consequence, i.e. death, occurred within our borders. Compare S v Maseki 1981(4) SALR 374; Gardner and Lansdown, SA Criminal Law and Procedure, Volume 1, at p.34; and S v Mampa 1985(4) 633 at 637. In the result the point in limine is upheld. This Court has in the circumstances of this case no jurisdiction to hear the murder charge against the accused. This ruling must be read in conjunction with the main judgment given in this matter in particular the discussion and finding in respect of the second count of attempted murder.