S v Thomas NAHCMD (19 June 2023)
The accused persons, being citizens of the United States of America, are jointly charged with Murder; Robbery with aggravating circumstances; contraventions of sections 22(1), 2, and 33 of the Arms and Ammunition Act 7 of 1996; and Defeating or obstructing the course of justice. It is the State’s contention that, when the accused persons committed the alleged offences, they were acting with common purpose.
On 11 November 2014, the accused persons pleaded not guilty to all charges preferred against them, and elected not to disclose the bases of their respective defences. During the course of the State’s case, which covered a period of more than eight years, the court was seized with multiple interlocutory applications, and heard the testimonies of 49 witnesses. At the close of the State’s case on 10 May 2023, the accused persons intimated that they intend to bring applications in terms of section 174 of the Criminal Procedure Act 51 of 1977 (the CPA), in which they seek their discharge on all counts. The State opposes the applications.
The Court considered the applications, and stated that:
The law in section 174 applications
‘[5] When considering an application like the present, the court has a judicial discretion whether to grant the application or not. This gives the court the power at the close of the case for the prosecution to discharge the accused if there is no possibility of a conviction, other than if the accused enters the witness box and incriminates himself. The failure to order the discharge of the accused in those circumstances would constitute a breach of the right to a fair trial as guaranteed in Article 12 of the Constitution; when the conviction is exclusively based upon the accused’s self-incriminatory evidence.
[6] It is now settled law that the term ‘no evidence’ in section 174 means no evidence upon which a reasonable court, acting carefully, may convict. (S v Khanyapa 1979 (1) SA 824 (A) at 838F; S v Nakale 2006 (2) NR 455 (HC) at 457, endorsed in S v Teek Case No. SA 44/2008 (SC) delivered on 28 April 2009 (unreported).
[7] At the outset, it must be understood that the test for discharge under section 174 differs from the test at the end of the trial where the Court is required to assess the evidence as a whole, including the probabilities.
[8] Regarding the credibility of State witnesses at this stage of the trial, Brand AJA in the Teek matter said the following at p.5:
‘Somewhat more controversial is the question whether credibility of the State witnesses has any role to play when a discharge is sought under this section. But the generally-accepted view, both in Namibia and in South Africa, appears to be that although credibility is a factor that can be considered at this stage, it plays a very limited role. If there is evidence supporting a charge, an application for discharge can only be sustained if that evidence is of such poor quality that it cannot work, in the opinion of the trial court (see e.g. S v Mpetha 1983 (4) SA 262 (C) at 265; S v Nakale supra at 458). Put differently, the question remains: is there, having regard to the credibility of the witnesses, evidence upon which a reasonable court may convict?’
[9] With regards to evaluating the reasonable possibility that an accused may supplement the State evidence as a factor for consideration, Muller J in Nakale (at 464F-I) proposed the following factors for consideration by the court:
‘(a) the type of offence(s) allegedly committed;
(b) if there is more than one accused, and there is evidence by the State supporting an
allegation of common purpose;
(c) presumptions of law;
(d) reliance on an alibi;
(e) the manner in which the accused cross-examined State witnesses, and statements made to them;
(f) allegations or admissions made during pleading.
There may be other factors, and it is not possible to provide a numerus clausus thereof.’’
Facts considered decisive in determining the issue at hand.
‘Having considered all the evidence before it, the court concluded that:
[32] When considering the applications made by the accused persons in view of the facts briefly summarised above, there appears to be sufficient evidence before court from which a court, at the end of the trial, may draw inferences which satisfy the requirements laid down in R v Blom 1939 AD 188. The State’s case is primarily based on circumstantial evidence in respect of some of the charges, whilst there is direct evidence linking the two accused to others.Though mindful of the fact that only the evidence of State witnesses is before court, the approach to circumstantial evidence is not to consider it piecemeal, but rather to follow a holistic approach, at least as far as it concerns the individual charges brought against the accused. These charges, to a certain extent, are intertwined and directly or indirectly linked to the murder
charge.
In this instance, there is no direct evidence linking the accused persons to the murder. Neither could the firearm barrels and silencer found in possession of the accused persons be linked to the murder. It is further alleged that the accused, in respect of each offence charged, acted with common purpose. The doctrine of common purpose may be relied on where the facts show that the accused joined forces to attain a certain goal by unlawful means.
[33] When applying the principles stated above to the evidence presented during the State’s case, it is my considered view that the State has made out a prima facie case against the accused persons, which they should answer to. In coming to this conclusion, the following evidence (but not limited to) is taken into account:
(a) Evidence proving that the accused persons arrived from the USA in each other’s company for divergent reasons as set out by them. As for accused 1, who claims to have had business dealings with the deceased, the evidence shows that he, at the time of their arrival, had no means of making direct contact with the deceased for purposes of continuing their deliberations, and had to rely on the assistance of a stranger (Henri), to get hold of the deceased’s contact details.
(b) The evidence further discloses proof that accused 1 dispatched from Finland and brought into Namibia a silencer for a firearm, later found in the possession of the accused persons where they stayed at a guesthouse in town. In addition, two firearm barrels were found in their possession, for which neither of the accused claimed ownership, and thus remained unexplained. Both the accused distanced themselves from the firearm barrels and silencer, but this does not explain why these firearm parts were found in their possession, and what it was intended for. Moreover, where its possession (as far as it concerns the barrels), would constitute a criminal offence. In circumstances where the accused, shortly after their arrival, showed interest in the unlawful acquiring of a specific firearm (Glock pistol), to which the barrels and silencer could be fitted, it could be reasoned that they planned on using the firearm.
(c) There is direct corroborated evidence that when such firearm could not be obtained, the accused persons settled for and bought a 7.65mm pistol plus ammunition off the street, a deal which was clearly illegal. It has further been established that the deceased was shot and killed with the same calibre firearm. The firearm sold to the accused persons could not be traced during the police investigation and its disappearance remains unexplained; something which only the accused could possibly account for.
(d) It is not in dispute that a lunch meeting with the accused persons was set up by the deceased, and that the last contact between them was by means of a cellphone used by accused 1 shortly before the deceased was killed. The phone used during this contact could equally not be traced, and its disappearance remains unexplained.
(e) It is further not in dispute that the personal belongings of the deceased, like his cellphone and wallet, have been unlawfully removed from his person when murdered. Such conduct would constitute robbery, and likely to have been committed by the same person(s) responsible for the murder.
(f) As for a notebook found in possession of the accused persons and seized as evidence by the police, entries made in that book were such that it prima facie links up with the parents and place of business of the deceased, and contains information regarding firearms and/or accessories. The evidence presented shows that the notebook was unlawfully removed from the custody of the investigating officer and made its way to the Windhoek Correctional Facility, where it was later discovered under the control of accused 1. There is further direct evidence that accused 1 was seen tearing pages from the notebook which were destroyed. When the notebook was retrieved, pages were indeed found to have been torn out from the book.
Held that:
There is sufficient evidence from which the court, in the end, may draw inferences which justify the requirements laid down in R v Blom.
Held further that the approach to circumstantial evidence is not to consider it piecemeal, but rather to allow a holistic approach, at least as far as it concerns the individual charges brought against the accused persons.
When the evidence is considered in its totality, the State has made out a prima facie case against the accused persons, which they should answer to.
As a result, the applications in terms of section 174 of the CPA for discharge by accused 1 and 2 on all charges, were dismissed.
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