Windhoek
Two appeal judges of the Windhoek High Court recently described the manner in which a local lawyer drew up the Notice of Appeal of their client as “careless and thoughtless” in an appeal judgment before the High Court.
Judge Christi Liebenberg, known for not mincing his words, lamented the manner in which the grounds of appeal for Abraham Desmond Kurz, a former City Police officer, was drawn up by Murorua and Associates, leaving the instructed counsel, Advocate Thabang Pathela, with egg on his face.
“This is inter alia borne out by referring to the offence the accused was convicted of as ‘rape’ and not that of housebreaking with intent to rob and robbery, a completely different offense,” Judge Liebenberg stated in concurrence with Judge Naomi Shivute.
Kurz was convicted of the charge in the Windhoek Regional Court and sentenced to eight years imprisonment, of which three years were suspended on the usual conditions.
According to the judgment, Kurz was on suspension from his employment at City Police and got an advance on his salary on the day in question and went on a “drinking spree” until late that night. After 21h00 he went to the control room of City Police, where he opened the door and went inside armed with a knife and wearing female stockings over his head.
According to the officer on duty that night, Shindile Penyonyofi, he – without saying a word – motioned her to hand him the safe keys that were on the table.
After a brief struggle, in which she tried to disarm Kurz, the officer ran to the toilet where she locked herself in “as she became very scared of Kurz”, who admitted he took a 9mm pistol and 43 rounds of ammunition.
He later pleaded guilty to charges of possession of a firearm and ammunition without a licence, but denied guilt on the charge of housebreaking with intent to rob and robbery.
He was, however, convicted on the charge of housebreaking with intent to rob and robbery and subsequently appealed both the conviction and the sentence. In his appeal Kurz claimed he was “extremely drunk” when he committed the offense and that he took the firearm to kill himself.
But, according to Judge Liebenberg, besides failing to record any proper grounds of appeal against conviction, the majority of the grounds raised against the sentence are out of touch with the evidence adduced during trial.
“For instance, it is asserted that the magistrate in sentencing failed to consider the mental state of the appellant on psychological reports which were handed into evidence,” the judge remarked. But, the judge said, had the legal representative perused the record of proceedings – as he was required to do when establishing the grounds of appeal – he would have realised that at no stage during the trial were any psychologists’ reports received into evidence.
Asked to explain about the alleged presence of psychological reports that explained the accused’s state of mind at the time of his offence, Pathela could not provide any answer to the judges and had to abruptly abandon the ground of appeal.
In the end Kurz’s appeal was struck from the roll.