WINDHOEK – A third attempt by a HIV-positive accused for bail was refused by Appeal Judge Elton Hoff in the Windhoek High Court on October 07. This came to light after the magistrate in Katima Mulilo refused a second application by Carlos Kasinda Samahina to be released on bail.
Samahina testified his HIV condition worsened while in custody and that he collapsed in his cell during February 2014 and was taken to Katima Mulilo State Hospital.
Samahina already during his first bail application revealed to the court he had tested positive for HIV and informed the court during his second bail application that tests showed his CD4 count was very low and his viral load very high.
He further informed the court he developed kidney problems as a result of the dusty air he was breathing and the fact he slept on a cold floor in a cell without a mattress. He also said the conduct of police officers led him not to take his HIV medication.
The judge said he found no material misdirection by the magistrate to interfere in the discretion of the trial court.
Samahina was arraigned on charges of kidnapping and robbery with aggravating circumstances in the Katima Mulilo Magistrate’s Court. He was granted bail in the amount of N$500 on December 09, 2009 on condition he surrendered all his travel documents to the police and that he reports three times a week to the police. This condition was however later relaxed to once a week and he was not allowed to leave the district of Rundu without the permission of the investigating officer.
He however failed to appear in court on June 08, 2011 and a warrant of arrest was issued for him and his bail money declared forfeited to the State.
He was re-arrested during 2013 and applied for bail which was refused and subsequently he brought another bail application purportedly on new facts on March 03, 2014 which was also refused and it is against the second refusal of bail that he appealed. During the second bail application Samahina testified his medical condition had worsened in custody.
However, the magistrate in the bail application found that none of this constituted new evidence as it was already before court when he refused bail the first time.
The magistrate also pointed out that Samahina was already granted bail and that he circumvented the judicial process by travelling to Zambia without the permission of the investigating officer as was part of his bail conditions.
“One of the circumstances which may prompt a court of appeal to conclude that a magistrate has exercised his or her discretion wrongly is when his or her conclusion is vitiated by a misdirection,” Judge Hoff stated.
In the present instance he could not find no such misdirection, Judge Hoff said, and dismissed the appeal.