NOT REPORTABLE

REPUBLIC OF NAMIBIA

HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI

JUDGMENT

Case no: CC 04/2010

THE STATE

and

ANDREAS HASHIYANA HASHIYANA ACCUSED

Neutral citation: State v Hashiyana (CC 04/2010) [2016] NAHCNLD 2

(25 January 2016)

Coram: TOMMASI J

Heard: 4 – 11 March 2015, 11- 23 April 2015, 11-12 June 2016, 27-June -2015

Delivered: 25 January 2016

Flynote: Criminal Law Murder ― Non pathological criminal incapacity ―

Induced by alcohol consumption; stress related to insults and provocation ― State

bears onus to prove criminal capacity ― State assisted by natural inference that, in

the absence of exceptional circumstances, a sane person who engages in conduct

which would give rise to criminal liability does so consciously and voluntarily ―

Accused to lay foundation for it, sufficient to create reasonable doubt on the point ―

Evidence closely scrutinised ― Court to decide question.

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Criminal Law ―Theft ― Act of safekeeping not “taking” or “appropriating” even if not

procedural in terms of police regulations ― State not proving unlawfulness and

intention to steal.

Summary: The accused, his girlfriend, the deceased, and two friends were drinking

and socialising at a bar for the best part of the day. An argument erupted between

the accused and the deceased. He left the bar and returned with an AK 47 rifle

concealed underneath a police jacket. The accused fired approximately five shots

and killed the deceased and wounded a person passing the bar at the time of the

shooting. The accused pleaded non-pathological incapacity induced by alcohol,

stress caused by verbal abuse and provocation. Court held that the accused’s

conduct was purposeful, cogent and within the range of a normal person. The

accused was convicted of murder. He was also convicted of having contravened s

38(1)(l) of the Arms and Ammunition Act, 7 of 1996 and found not guilty of theft of

the AK47 and ammunition.

ORDER

1. Count 1 - The accused is convicted of count 1 – murder read with the

provisions of the Combating of Domestic Violence Act, 2003. (Act 4 of 2003) ;

2. Count 2 - The accused is found not guilty on the main count and is found

guilty of having contravened s 38(1)(l) of The Arms and Ammunition Act, 1996

(Act 7 of 1996);

3. Count 3 - The accused is found not guilty of count 3 – theft.

___________________________________________________________________

JUDGMENT

TOMMASI J: [1] The accused was charged with murder read with the

provisions of the Combating of Domestic Violence Act; attempted murder

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alternatively negligent discharge of a firearm; and theft of a AK 47 with approximately

27 rounds of live ammunition. He pleaded not guilty to all three counts.

[2] In count 1 the State alleges that the accused unlawfully and intentionally

murdered his girlfriend. The accused in his plea explanation pleaded that at the time

of the shooting he was acting in a state of non-pathological criminal incapacity

induced by the provocation, stress emanating from his girlfriend’s verbal abuse; and

the alcohol he consumed on the day of the incident as well as 2 days prior to the

incident.

[3] In count 2 the State alleges that the accused unlawfully and intentionally

assaulted a passer-by with the intent to murder him; alternatively that he unlawfully

and negligently discharged or handled the AK 47 rifle and did thereby injure or

endanger the life and limb of the passer-by. The accused’s explanation was that he

was acting in a state of non-pathological criminal incapacity induced by the

provocation, stress emanating from his girlfriend’s verbal abuse; and the alcohol he

consumed on the day of the incident as well as 2 days prior to the incident.

[4] In count 3 the State alleged that the accused intentionally and unlawfully stole

the AK 47 and live ammunitions which was the property of and in the lawful

possession of Regina Amwaama and/or the Namibian police and/or the Angolan

Consulate. The accused in his plea explanation stated that the firearm and the

ammunition was given to him by his colleague, Constable Regina Amwaama who

requested him to stand guard of the premises on her behalf whilst she went to buy

herself something to eat. He further stated that he intended to return the fire-arm and

had no intention to permanently deprive the owner of the lawful possession thereof.

[5] A brief summary of the facts which are not in dispute are as follow: On 10

December 2008, the accused, a police constable his girlfriend, the deceased and

two friends, Nambili and Jackson were drinking and socialising at Champ Style Bar

in Oshakati. At approximately 19H00 an argument erupted between the accused

and the deceased. Nambili left and the accused also disappeared from the bar. He

returned to the bar with an AK 47 rifle concealed underneath a police jacket. He

found the deceased in the toilet of the bar. When the deceased came out of the toilet

the accused was following shortly on her heels. The accused fired approximately five

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shots at her. She fell down and died on the floor of the bar. A passer-by was shot

and wounded on his thigh by a stray bullet fired by the accused.

[6] The medical evidence disclosed that the deceased sustained three gunshot

wounds. The fatal injury was caused by a bullet which entered the left shoulder

blade, passed through her lungs and the bottom of her heart; and exited on the right

side of the chest. The second gunshot injury was caused by a bullet which entered

the right outer aspect of the deceased upper left thigh and was lodged near the bone

of the left thigh. The third bullet entry wound was on the right buttocks and the exit

wound was located on the anterior aspect of the left thigh. The medical evidence is

consistent with the testimony of eye witnesses who testified that the deceased was

fleeing from the accused at the time he shot her.

[7] The accused does not dispute that he shot and killed the deceased. He

however raises a defence of non-pathological incapacity. This is not a defence of

incapacity as a result of mental illness. The concept, as correctly pointed out by Dr

Matoko, an expert witness called by the State, is not a medical term. It is a legal

concept. The author CR Snyman in Criminal Law, 4 th ed, at page 163 states the

following;

‘This name was formulated for the first time by Joubert J A in Laubscher1988 SA 163

(A) 167D-I. The judge wanted to separate this defence from that of mental illness created in

section 78(1) of the Criminal Procedure Act. He pointed out that the defence set out in

section 78 (1) applies to pathological disturbances of the mental abilities but apart from this

defence our law also recognised a defence of non-pathological criminal incapacity. (The

word “pathological means “related to a disease’) In this way the expression “non-pathological

criminal incapacity” (perhaps because of its erudite-sounding phraseology) came to be

accepted in our case law.’

[8] In S v Ngoya 2006 (2) NR 643 (HC), Damaseb JP, extensively dealt with the

defence of non-pathological incapacity and stated as follow at p 655 para 39:

‘The State bears the onus to disprove the defence of non-pathological incapacity

beyond all reasonable doubt. But the accused must lay a foundation sufficient to create a

reasonable doubt for the State to disprove it. I can do no better than once again refer to the

following observations of Snyman (op cit) at 166 (with which I agree):

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“The Court will approach this defence with great care and scrutinize the evidence

with great caution. The chances of X's succeeding with this defence if he became

emotionally disturbed for only a brief period before and during the act, are slender. It is

significant that in many of the cases in which the defence succeeded or in which the Court

was at least prepared to consider it seriously, X's act was preceded by a very long period -

months or years - in which his level of emotional stress increased progressively. The

ultimate event which led to X's firing the fatal shot can be compared to the last drop in the

bucket which caused it to overflow. When assessing the evidence, it should be borne in mind

that the mere fact that X acted irrationally is not necessarily proof that he lacked the ability to

direct his conduct in accordance with his insights into right and wrong. Neither does the

mere fact that he cannot recall the events or that he experienced a loss of memory,

necessarily afford such proof. Loss of memory may for example be the result of post-

traumatic shock which arises in X as a defence mechanism to protect him from the

unpleasantness associated with the recalling of the gruesome events.'”

[9] This approach was confirmed in State v David Hangue, case no SA 29/2003,

unreported judgment heard on 19 October 2004 and delivered on 15 December

2015 where Maritz AJ comprehensively discussed the defence of non-pathological

criminal incapacity. In paragraph 46 of that judgment, Maritz AJ agrees with the

approach adopted by Navsa AJ in S v Eadie 2002 (3) SA 719 (SCA) who restated

the position as follow:

‘It is well established that when an accused person raises a defence of temporary

non-pathological criminal incapacity, the State bears the onus to prove that he or she had

criminal capacity at the relevant time. It has repeatedly been stated by this Court that:

(i) in discharging the onus the State is assisted by the natural inference that, in the

absence of exceptional circumstances, a sane person who engages in conduct which would

ordinarily give rise to criminal liability, does so consciously and voluntarily;

(ii) an accused person who raises such a defence is required to lay a foundation for it,

sufficient at least to create a reasonable doubt on the point;

(iii) evidence in support of such a defence must be carefully scrutinised; and

(iv) it is for the Court to decide the question of the accused's criminal capacity, having

regard to the expert evidence and all the facts of the case, including the nature of the

accused's actions during the relevant period’

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[10] The court has to evaluate only one issue, i.e whether the State succeeded in

proving beyond reasonable doubt that the accused, when he shot his girlfriend, had

the requisite criminal capacity to appreciate the wrongfulness of his action and that

he possessed the ability to act in accordance with such an appreciation. What

follows is an examination of the proven facts.

[11] The accused averred that he started drinking heavily two days before the

time. According to him he was drinking with the deceased and Nambili on 8

December 2008 from midday until late. He was later joined by a friend who was

working. Nambili testified that she is teacher and that her school closed on 3

December 2008. She recalled that it was on that day that she joined the accused

and the deceased in Champ Style Bar in Outapi. She started attending classes at

Ongwediva College on 8 December and she stated that it was not possible for her to

have been drinking in a bar in Outapi on 8 December 2008. The accused testified

that it was on 8 December 2008 and he called his friend as a witness to confirm this.

The State pointed out that there are discrepancies in the testimony of the accused

and his witness in respect of the incident. It was however not disputed that there was

such an incident but only the date was disputed. The defence witness remembered

the date as he noted it in his diary after he heard of the arrest of the accused to

remind him of the good time he had with the accused. Both witnesses testified more

than 7 years after the event. The explanation given by Nambili is far more plausible

than the explanation given by the defence witness. Nambili testified that she left at

17H00 and the defence witness testified that he joined the accused and the two

women after work i.e after 17h00. I accept that the accused had been drinking in

Outapi during December 2008 but I am not persuaded that indeed the parties met on

8 December 2008.

[12] Lina Kakoto, the bar lady, testified that the accused, the deceased and

Jackson came to the bar at around 12H00. The deceased ordered beers and the

three of them drank the beer. A friend of the deceased, Nambili arrived and also

bought some more beer. The deceased and her friend were talking to each other

and this, for some reason or the other, did not please the accused as he asked

Nambili to stop talking to the deceased. She observed the accused and the

deceased holding hands behind the counter. The deceased came to her side of the

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bar and the accused held her hands again. The deceased then removed her hands

from the accused and went to the other side of the bar. There was one other

customer playing the gambling machines. She noticed that the accused left but she

did not see it as she was busy with other customers. After a while the accused

returned wearing a long police jacket and the deceased went to the toilet. The

accused followed her into the toilet behind the counter. She could see something

was protruding from the jacket. She heard him cocking the rifle and she left the bar.

She called the security next door to inform him that the accused was in the toilet with

a fire-arm. There was only one customer playing the gambling machines in the bar at

the time. She was standing at the door when she saw the deceased coming from the

toilet walking very fast. She saw the accused following and when he got to the place

where the gambling machines were he lifted the rifle and she ran away. She heard

three shots. She saw the accused walking in the direction of the Angolan Consulate.

During cross-examination it became apparent that she was not paying attention all

the time and only heard and observed some of what transpired between the accused

and the deceased that afternoon prior to the incident.

[13] Jackson Shikalepo, a police officer and colleague of the accused testified that

he met with the accused, his girlfriend and Nambili on 10 December 2003 at around

16H00 at Champ Style Bar. He found them seated at the counter, drinking 3 bottles

of beer and he joined them. The bar lady was sharing two beers with the accused.

The bar lady denied that she drank on duty and this was not confirmed by the other

witnesses. The deceased bought beers and he does not recall that Nambili bought

any beers. He testified that the cost of one beer was N$7.50 at the time. Nambili

testified that she bought beers for N$100 which would mean considerably more than

what Jackson was prepared to admit. The accused testified that he had been

drinking a lot of beer on the day in question. It was common cause that they started

drinking beers from approximately 11 o’clock that morning. I am satisfied that the

accused indeed consumed a lot of beer prior to the event.

[14] According to the accused he started dating the deceased in June 2008 and

there had not been serious issues between them. A day prior to the incident the

deceased, according to the accused, saw a message on his phone from another lady

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and broke his cell phone. The next day he did not want to accompany her to Champ

Style Bar but eventually agreed to do so. He called a witness who confirmed this.

[15] He testified further that the deceased again argued with him about phone calls

he received from other women and he decided to leave. He requested N$10 from

Nambili and went to another bar. He was called back by Jackson.

[16] At the bar his friend Jackson, was making advances towards Nambili, Nambili

confirmed this whilst, not surprisingly, Jackson denied it. Accused testified that his

refusal to interfere led to an argument between him and the deceased and he finally

told the deceased that they should break off the relationship. The deceased threw

beer in his face and then informed him that she does not care as he is useless and

she had already killed him. When he asked her what she meant she informed him

that she had already infected him with the Human Immunodeficiency Virus (HIV).

This, according to the accused, constituted the verbal abuse and provocation which

together with the level of intoxication caused him to act in the manner he did.

[17] Although none of the State witnesses saw this or heard this discussion it is

plausible that it may have happened. Jackson and the Bar Lady were not very

attentive at all times and Nambili left their company at around 19H00. Furthermore

the bar was noisy and busy and it is reasonably possible that the deceased informed

the accused that she had infected him with HIV without the other people overhearing

the conversation.

[18] The key question is what impact this information and the alcohol had on the

accused’s criminal capacity.

[19] The accused left directly after he was informed of the possibility that he may

have been infected with a decease for which there is no known cure. According to

the accused he wanted to take a taxi to go home. He was standing in the road and

his colleague working at the Angolan Consulate called him and asked him to stand in

for her as she wanted to buy food. He agreed to do so and he went into the duty

room. This colleague passed away and the accused version in this regard is

uncontroverted.

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[20] The accused testimony in respect of what happened next is crucial. He

testified that they made sure that all was in order. One firearm was not in the safe.

His colleague then left him in charge. He stated that: “When she left me there in my

head there was still that words she mentioned to me saying that she killed me. … It was

something which made me angry, like confused me. I did not expect that.” He took the

firearm and he contemplated shooting himself. He fired one shot but however

decided against shooting himself. His colleague who had not gone far at the time

asked him what is going on. He told her that he handled the fire-arm by mistake.

[21] He testified that it was raining at the time and he put on the police jacket and

“then I decided to go the Champ Style. I decided not to leave the firearm because I wanted

to go ask the lady that what she mentioned was it true because I cannot leave the firearm

behind without anybody’s care then I decided I will go with it.” When he came into the bar

he observed two people present in the bar. One person was playing the jackpot

machine and the other person was the bar lady. He asked the bar lady where the

deceased was. Before she could respond he saw the deceased coming from the

toilet. He told her he wanted to talk to her and he followed her into the toilet. He

asked her if it was true and she confirmed it. They started arguing in the toilet about

her failing to inform him from the beginning. He was standing at the door and she

wanted to come out. He told her “no let us talk”. She pushed him and he caught her.

The accused evidently was trying to prevent the deceased from leaving the confined

space of the toilet but the deceased managed to leave the toilet. The jacket

somehow came off in the toilet. He followed her and he found in his words that he

just shot her”. He does not recall how many times he shot her but he knew that he

shot her.

[22] He then came back to the duty room and he returned the fire-arm. The State

led evidence that the fire-arm was found abandoned in the yard of the Angolan

Consulate. The accused however was very sure that he had left the fire-arm in the

duty room where he found it in the yard. The state was not able to prove that the

accused had abandoned the fire-arm where they found it. The evidence of the

shoeprints of the accused is not cogent. The investigating’s officers testimony in

respect hereof makes no sense but it is evident that no cast was made nor was the

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scene of crime officer alerted to take a photograph of the shoeprint. The investigating

officer admitted that there were supposed to have been three fire-arms in the safe.

The photo plan depicts the safe opened with no firearm inside. The accused left the

duty room unattended when he fled the scene and it, given the discrepancies’, is

possible that the scene in the duty room may have been changed. In the absence of

the testimony of the officer who was on duty that night, the court has only the

accused’s testimony that he placed the fire-arm back in the duty room.

[23] The accused further testified that he left the scene via a road behind the

Angolan Consulate and he saw the security guard who was shot in the leg whilst

passing the Champ Style bar shivering. He stopped to enquire whether all was well

and wanted to know why he was shivering. The security guard did not answer him

but later informed him that he was shot. The accused asked him who shot him and

he indicated that he did not know. The accused’s version mostly corresponds with

that of this witness, Jaime Joachim. The questions of the accused are suspect but it

does not conclusively prove that he was questioning the witness to determine what

he knew.

[24] The accused testified that he does not remember how he ended up at the

other girlfriend’s place where the police found him. He denied that he was naked and

hiding underneath the bed as testified by his other girlfriend and the two police

officers. He remembered that he was wearing a “trunkie” at the time. He testified that

he walked around and the police found him on the bed but he does not know how he

got there.

[25] It is apparent that the accused was able to recall the events of that evening in

detail. He in fact recalled exactly when Jackson and Nambili arrived. He recalled

details of how he left after an argument with the deceased about the calls he was

receiving. He showed some restraint after having this argument by leaving the

deceased despite the fact that he had been drinking beers. He recalled how he

borrowed money from Nambili to take a taxi and that he returned after Jackson

called him and asked him to come back.

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[26] There are no gaps in the accused’s memory. There are three things which the

accused was unable to give an explanation for. He was unable to say why he shot

the deceased. He was also unable to explain why he, having decided to kill himself,

did not do so. Finally he was unable to recall how he ended up at his other

girlfriend’s place. These are not gaps in the memory of the accused. They are all key

moments which, if explained, would disclose the decisions he took and his mind-set

at the time. The accused decided not to kill himself. No explanation was tendered as

to why he fired a shot but it was evident that he lied about it being a mistake. The

inability to disclose why he shot the deceased is furthermore not a breakdown of his

memory but rather an inability to accept the truth i.e that he was angry and

deliberately decided to shoot the deceased for having infected him with a deadly

virus. He believed that this was the truth. He evidently took a decision after walking

around which led him to his other girlfriend’s place. He decided not to go to his own

place as he knew that he committed an offence and it would be the first place where

the police would go to. The accused admitted that as much during his bail

application.

[27] The State submitted that the accused used his jacket to conceal the weapon

with which he intended to kill the deceased. The accused’s explanation for wearing

the jacket was that if I cannot reject it as false and it is reasonably possible that he

wore the jacket because it was raining that day. This however shows that the

accused was applying proper reasoning even in his state of drunkenness and

despite his emotional state. He reasoned that he could not leave the weapon

unattended, that he had to protect it from the rain. Although he was inebriated and

his mind was occupied with the news of his HIV status, he was acting purposefully

and was capable of acting responsibly. His actions was goal orientated and fell

within the range of the actions of a normal person.

[28] Although the court accepted that the accused consumed a lot of beers that

afternoon no medical evidence was adduced which would persuade the court that

the accused’s intoxication and provocation impaired his ability to appreciate the

wrongfulness of his actions and/or that despite his ability to understand that he was

unable to act in accordance with such appreciation. The witnesses testified that the

accused did not appear to be very drunk and his own account of what transpired that

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afternoon was coherent. The evidence adduced by the State witnesses confirms

what the court concluded from the testimony of the accused i.e that he took

decisions knowing what he was doing and understood that it was wrong to shoot the

deceased hence his reluctance to disclose the reason why shot her. The only reason

why he could not give a reason for having shot the deceased, was to conceal his

true intention. I am unable to conclude on the evidence adduced that the provocation

and alcohol induced a state of non-pathological incapacity. The accused, on his own

version, recalled that he shot the deceased when she was going out of the bar i.e

trying to escape from the deceased who wanted to detain her in the toilet. He

intended to kill the deceased as he believed that she had infected him with a deadly

virus.

[29] I am satisfied that the State proved beyond reasonable doubt that the

accused committed the offence of murder with direct intent.

[30] In respect of count 2, Jamie Joaquim testified that he was employed as a

security at the Ministry of Finance which was adjacent to the offices of the Angolan

Consulate. On 10 December 2008, at around 19H00 he heard a gunshot but could

not determine where it came from. At 19:29 he went to mini market close to his

office. When he returned he passed Champ Style bar. He heard approximately five

gunshots coming from the bar. He observed some of the bullets hitting the water and

passing on top of him. One of the bullets struck him on his hip. He recalled that it

was single shot and not automatic fire. He ran to the corner near the Angolan

Consulate and stood there looking back in the direction of Champstyle Bar. He saw

the accused walking in his direction shifting the firearm from his right hand to his left

whilst it was pointing downwards. He ran back to his work when he saw that the

accused was coming his way. The accused looked at him and he switched off the

lights in his duty room. After a few minutes he heard the accused calling him. The

accused was standing in the road behind the yard of the Ministry of Finance. He

came out and the accused asked him if there was a problem. He was reluctant at

first but later informed the accused that he was shot. The accused asked him who

shot him and he decided that it was best to inform him that he did not know who shot

him. The accused thereafter left.

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[31] Mr Shileka correctly conceded that the State did not prove the main count but

asked for a conviction on the alternative count. There was no evidence adduced

which indicated that the accused foresaw the possibility that he might kill the passer-

by and that he reconciled himself to this possibility.

[32] The alternative count is that the accused contravened s38(1)(l) of the Arms

and Ammunition act, of 1996 which reads as follow:

“ Any person who:-

(l) discharges an arm and thereby negligently kills, injures, endangers the life or

limb of another person or damages property of any other person, or who handles an arm in a

negligent manner, whether that arm discharges or not;”

Is guilty of an offence.

[33] The body of evidence proves beyond reasonable doubt that the accused was

acting negligently i.e that a reasonable person in the same circumstances would

have foreseen the possibility that his conduct may bring about the injury of the

innocent bystander or persons passing by and a reasonable person would have

taken steps to guard against such a possibility. The accused’s conduct however

differed from the conduct of a reasonable man and as such he caused an injury to

the complainant, Jaime Joacim. I am satisfied that the State had proven the

elements of this offence and the accused thus stands to be convicted on the

alternative count.

[34] In respect of the third count of theft this court has concluded above that in the

absence of the evidence of duty officer that the accused’s version that he was legally

placed in possession of the fire-arm stands uncontroverted. This court furthermore

concluded that the State did not adduce evidence to persuade this court to conclude

that the accused abandoned the fire-arm in the yard where it was found. The

accused furthermore testified that he did not take the weapon in order to shoot the

deceased but rather to retain safe custody thereof. This contradicts his plea

explanation which indicate that he intended to return it to the owner. The assumption

is that he took it and thereafter return it. I find his explanation that he did not want to

leave the fire-arm unattended hard to believe but I cannot conclude that it is false

beyond reasonable doubt as no evidence was adduced to gainsay his explanation.

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[35] The issue is not whether the arrangement made between the two was not

procedural in terms of the police’s internal regulations but whether the State proved

that the accused obtained unlawful possession of the fire-arm. Having made these

factual findings it cannot be said that the accused unlawfully “took” the firearm.

Furthermore his subsequent abandonment in the duty room is as a resultof his

undertaking to stand in for a colleague or a dereliction of duty rather than

abandonment of items he stole.

[36] In the result I am not persuaded that the State proved beyond reasonable

doubt that the accused stole the fire-arm and the ammunition and the accused

consequently should be acquitted on this count.

[37] In the result the following order is made:

1. Count 1 - The accused is convicted of count 1 – murder read with the

provisions of the Combatting of Domestic Violence Act, 2003. (Act 4 of 2003) ;

2. Count 2 - The accused is found not guilty on the main count and is found guilty

of having contravened s38(1)(l) of The Arms and Ammunition Act, 1996 (Act 7 of

1996;

3. Count 3 - The accused is found not guilty of count 3 – theft.

___________________

MA TOMMASI J

Judge

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APPEARANCES

The State: Adv R Shileka

Office of the Prosecutor-General

ACCUSED: Mr Haingura

Instructed by Legal Aid

Haingura Attorneys

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