Judge: ‘It was murder, not an accident’

Home National Judge: ‘It was murder, not an accident’
Judge: ‘It was murder, not an accident’

Oshakati High Court Judge Johanna Salionga last week convicted a man on a charge of attempted murder and murder for shooting his wife three times with a pistol.

Erkki Haimene faced a charge of attempted murder, one count of possessing a firearm without a licence, one count of possessing ammunition without a licence, and a count of murder, read with the provisions of the Combating of Domestic Violence Act. 

On the attempted murder charge, it was stated that he shot the deceased, Vistorina Ndateelela Haimene, on 2 October 2010 at the Greenwell Matongo residential area in Windhoek, and hit her on the upper arm and breast. 

The arms and ammunition charges are also linked to that day. However, the judge found him not guilty on those charges, as the State failed to prove that he possessed the firearm and ammunition. Haimene informed the judge that he was just keeping it safe for a friend who left it in his car.

With regards to the murder charge, it was stated in the charge-sheet that he shot Vistorina on 15 April 2020 at Omahenene village in the Eenhana District with a 9mm pistol. 

She had three entrance wounds –
one at the chest area, one at the stomach area, another on her upper thigh penetrating into her pelvic area – and two exit wounds – one on her back and one at her backside. 

Haimene testified in his own defence, and denied that he murdered Vistorina, saying she was shot on both occasions accidentally while they were tussling for the gun.  Judge Salionga, however, threw his versions out of the window, describing them as false beyond a reasonable doubt. 

While the State relied on the evidence of a single witness in the attempted murder charge, the judge said a court acting carefully may convict on the evidence of a single witness if such evidence is reliable, and also looking at the evidence holistically. 

In this instance, she said, she considered the evidence in its totality, and is satisfied that the State proved its case beyond a reasonable doubt. 

With regards to the murder charge, the judge said there was no eyewitness to the shooting, as it happened in the couple’s common bedroom. The only evidence about the shooting was from a witness inside the house who heard an argument between the accused and Vistorina, and heard her screaming “You are killing me” before he heard gunshots. 

Salionga then turned to the evidence of the doctor who conducted the autopsy. According to her, the doctor’s explanation that the cause of death was multiple gunshot wounds and his determination that a large part of her organs were damaged, leaving her with a zero chance of survival, was crucial. 

His assessment that the shots were fired from a distance is also important, as it disputes the accused’s evidence that the shots went off while they were struggling for the firearm, the judge stated. 

Furthermore, Salionga said when dealing with circumstantial evidence, a court must evaluate the totality of the evidence, and only convict if it is found beyond a reasonable doubt that the evidence points in the direction of an accused person. In this instance, she said, the accused was the only person who was with Vistorina on the fateful evening, and having considered the merits and demerits of both the State and the defense’s case as well as the probabilities, the only inference to be drawn is that the accused murdered Vistorina, and that he had the direct intention to kill her.