CASE NO.:   CC 12/96

THE  STATE  versus  MICHAEL  IVAN OXURUB

O'LINN,J   

1996/02/09

Criminal Law Abberatio ictus.

This principle need to be reconsidered.

were sitting in a vehicle. The accused came to the vehicle and jumped on the back of the vehicle and opened the passenger door and stabbed the deceased on the chest. The deceased was transported to a hospital where she died as a result of a penetrating stab wound into the chest."

This case as set out in the indictment and in the summary of substantial facts remained substantially the State's case throughout: the hearing.

The accused pleaded not guilty to the charge. His counsel, Mr Christians, gave an oral explanation of plea which appears from the following passages in the record. I quote frcm relevant parts from the record. "The accused's explanation or defence is that he will admit that he struck her with a knife, but it was accidentally." Then Mr Christians continued and I quote: "An accident, it was accidentally, in his effort to stab and injure another person, the man who was with her, who also injured him on his hand. He accidentally struck her when, in his attempt to stab another person, that is the man who was with her in the vehicle, after this person also injured him on his hand with a sharp object. The vehicle was moving at the time. The driver injured the accused with a sharp object in his hand. The accused's intention was to injure this person, this man who was with her." Then Mr Christians confirmed chat he is prepared to admit that she died because of this accidental stab wound and also the identity of the deceased was admitted.
The record of the section 119 proceedings before the magistrate was also handed in by consent as ANNEXURE B. The relevant part, of the proceeding in the form of questions and answers are as follows:

Then the following questions and answers appear from the record:

"Q:    Did you kill  one Emma Madam Vries on 25th September
1994 at Swakopmund in the district of Swakopmund? A:      Yes,  and she died at the hospital. Q:      How did you kill her?
A:      I stabbed her with a knife.    She was sitting in a car
when I stabbed her. Q:      Do you know the identity of the deceased? A:      Yes.    She was my girlfriend and her name is Emma Vries. Q:      Do you know what caused her death? A:      As a result of the stab wound.
Q: Did you realise that you could kill her by stabbing her with a knife?
A: Yes, I know if one stabs another, one person with a knife that other person may be killed, but I do not know where I stabbed her.
Q:      Why did you stab her?
A:      I caught her with another man and I wanted to stab the

man who stabbed me first on the edge of my left hand, but unfortunately the deceased was between me and that man. I did not intend to stab the deceased. I wanted to injure the man and accidentally stabbed the deceased."

As a result of this explanation the learned magistrate entered a plea of "not guilty."

The following witnesses were called by the State to testify on behalf on the prosecution.
1.	Dr R J Moisel,   the district surgeon who conducted the post mortem examination on the deceased.
2.	Mr Moses Mabedi who was the driver of the vehicle in which the deceased was when stabbed by the accused.
3.	Ms Klasina Harabes,  a cousin of the deceased.
4.	Constable Clifford Molander,   a member of  the Namibian Police who arrested the accused after the incident.

On questions by Ms Hongonekua that the doctor said:

"The force necessary to cause such a wound I would describe as being moderate, the reason being that no bony or cardial structures were traversed so all the injuries I describe, all the tissues traversed were soft tissues."

It was put to him by the Court that a person could actually have used a lot of force but because of the soft tissue it could also have been done with moderate force. "So no more than moderate force was necessary?" Dr Moisel replied: "That is quite correct." Now it will be noted that in his first answer the doctor used the words "the force necessary to cause such a wound" . That does not mean that in fact that only moderate force had been used. In further answers the  doctor  said,   "The   injury  does  not  preclude   a   severe
amount of force	The direction of the stab was in
a medial direction downwards and to the middle	My
opinion, in this specific case, would be that it must have been a stab wound because the tract of the wound is much longer than the transverse. The longitudinal length of the wound is much longer than the transverse diameter of the wound and also a cut would probably have gone across the ribs." Then he continued, "Or it would have met with resistance from the ribs and you would have seen that. So I would, my opinion would be that this is much more likely a stabbing force than a cutting force."

Under cross-examination by Mr Christians about the length of the wound and the probable length of the blade of the instrument the doctor said: "It could be smaller." This is now when he referred to the 3 centimetres width of the wounds and the possible instrument. "It could be smaller. The maximum and the minimum length, I would say, is 7 centimetres" and he continued, "It could be longer." Further under cross-examination he said, "I cannot agree that there is a really material difference in the length of the blade and the minimum length that I have specified." And on a further question by Mr Christians he said: "So under severe force an assumption I would say it would be more likely that the knife would have gone in up to the hilt, wherever it stopped."

It is clear from his evidence that the blade of the knife used was at least 7 cm in length and its width at the hilt 3 cm,  or slightly less,  but not substantially less.

Some particular points of relevance in his evidence that need to be mentioned in addition to this general picture is the following. Mabedi said: "That's right, Your Lordship, and after the accused stabbed the deceased she grabbed her,
(it means him) , on his hand. Your Lordship, in order to avoid that he, she couldn't stab her the second time or again." He said that at that time the vehicle was in movement, but very slowly. He further said that then the accused jumped from the vehicle and ran away. As to why he did not see precisely what the weapon looked like.    He said,

Your Worship, very aggressive." And later on the question was "And after you stabbed, what happened?" "It's when the car then moved in this zig-zag manner, Your Worship, made a turn, I fell off from the car." Now here again it becomes clear that his case there is that the zig-zag movement began after the stabbing.

And about what happened to the knife on questions by his counsel he said: "Your Worship, there at the scene he asked me where the* knife is and he took the knife." So the allegation is that the original investigating officer, Mr Petrus, at the scene of the alleged crime asked him for the knife and Petrus then took the knife. So the issue of whether or not Petrus raised the question of the knife is quite clear. It's common cause therefor that Petrus must have asked for the knife and that, in fact, he did visit the scene together with Petrus. Petrus is also referred to as Sergeant Thomas. And as to the wounds he said he showed this Sergeant Thomas the wounds, but Thomas said it is not serious.

The issue whether he would land on his back and not on his knee or on his feet if he fell backwards, as to that he explained "After I struck with the knife inside and actually it was at that stage when I removed my arm at the stage when the man also started driving in a zig-zag manner, it's when I fell out from the car." And then he came with another explanation that actually what happened is that when the car started turning zig-zag, driving in a zig-zag manner, he fell not backwards over the side, but he first fell backwards into the bakkie and that is how he now attempted to explain that he wasn't actually falling backwards over the side, he was falling backwards into the bakkie at first. And that was, it seems, a fabrication just to explain why he didn't fall flat on his back or on his side. If this was so, the version of the driver, Mabedi, that he jumped off the vehicle becomes even more probable.

Now,   the Court called the witness,   Tommie Petrus,   who was the original investigating officer and who was at the time a member of the Namibian Police force, but at the time he gave evidence he was no longer in the police force, but employed by Transnamib. Now this witness was called to tell the Court about the knife and about whether he saw any wounds or injuries on the accused. His evidence was absolutely emphatic about these two things. He said that, as to the knife, he requested the accused person to hand the knife over to him, but the accused had said he threw it away. They went back to the scene to look for the knife, but they couldn't find it. Then he also indicated that that is the usual procedure .that if somebody admits that he had scabbed somebody with a knife, he as a policeman, immediately asks him for the knife. And furthermore that is what he did on this particular occasion. He asked him for the knife and that is not in dispute. And then he explained that what he would have done with the knife is that he would have booked it in at the police station as an exhibit and afterwards he would have taken the number of the exhibit book and he would write it on the docket and that was the usual regular procedure. He also said as to the wound that accused couldn't have had a wound on the left side of his hand, because after arrest and probably within 48 hours he took his fingerprints and in addition one of the forms of prints that they take in murder cases is this side of the palm of the hand of a person and if there was any injury or bandage or anything like that, he must have noticed it and it would have impeded the taking of those fingerprints and palm prints. It is true that it was pointed out that the actual prints received back does not show that the side of the hands were taken or were printed. Some enquiry was made and it turned out that no such record is available. However, this witness, when he was confronted by Mr Christians, explained that, although the print before the Court was taken some two weeks after the arrest, almost the same time or approximately more or less the time when accused appeared before Court, that was not the first time the fingerprints were taken and this was a second set of fingerprints. That the original set was taken at the normal time just after the arrest and was sent back because they were improper. And on further questioning he said that the accused knows that he had taken the prints the second time and he told Mr Christians that he could ask the accused and the accused would confirm it. He said that the accused actually asked him: "Why do you want to take my fingerprints again? And he explained to the accused that the first set was not in order and therefor he had to take the second set. Mr Christians did not however put it to his witness that his client denies that. Mr Christians also refrained from asking his client, the accused, whether or not it's true, as alleged by the witness Petrus, that the fingerprints were taken a second time and that the accused actually queried that. So it seems to be beyond all doubt that the fingerprints were taken a second time and that the fact that no record can be found of the prints of the side of the palm, does not detract much from the assertion and the evidence of the witness,  Petrus.

Now, my observation of the various witnesses are as follows. The State submitted that the eye witness, Mr Moses Mabedi was an excellent witness.    The response of Mr Christians was a bit uncertain. He first hesitated to refer to any points where the witness was unsatisfactory. However, what can be said without -doubt is that he was not unable to make any convincing submission about the untrustworthiness of the witness Mabedi and why the Court should not accept his evidence in the context of all the other evidence. The Court is in full agreement with the State that the witness, Moses Mabedi was throughout an excellent witness. He was firm, he answered questions very well provided those questions were clear and not ambiguous. He answered those questions with conviction. So he appeared in every way to be a very reliable witness and the Court was impressed by this witness and has no reason to doubt his veracity.

The accused, as I have indicated, shifted his evidence and the basis of his defence repeatedly. The reason how it came about that he stabbed the deceased, given by him, was ambiguous and contradictory from time to time. There were stages when, according to him he saw the deceased actually sitting next to the driver and close to him and that was just before the stabbing and he actually saw that. It seems that he then, from time to time realised that this is a dangerous statement to.make because then it would be said that if she was sitting next to the driver then surely he must have known that his blow could strike her. And then his alternate position was to say well, I didn't see that, the last time I saw her she was sitting on the left and so on. This story about how he sat on the side of the vehicle and how he leaned into the vehicle with his arm and tried to scab the driver on his right hand side is completely improbable. He was not drunk, he was not out of his senses at the time, according to his own story and according to all the available witnesses and how he could have thought that he would strike the driver by acting in the fashion that he did, is totally improbable. At least he must have realised at all times that it would be extremely risky and that he could stab anyone if he proceeded in the manner he did. The accused was not a good witness, but on the other hand one cannot say that he made a very bad impression. His whole explanation however of what he wanted to do on the vehicle, what  he  wanted  to  achieve   from  time  to  time  and  how  he managed to stab the deceased, were not only conflicting, but all his different versions were improbable.

The sister of the accused was really unimpressive. A sister who has some education and training as a nurse, who says that she does not know whether, if you stab into the body of a person, deep into the upper body, that the blade of the knife would have blood on it when withdrawn from the body, is inconceivable. It seems that she wishes to evade the question in this manner in an attempt to avoid the obvious conclusion that the accused must have seen blood on the blade of his knife and must have known that the blood came from the fatal wound inflicted on the deceased. Her evidence, however, also in conflict with the evidence of the accused on the important aspect of what he told her immediately after the incident. The crux of her evidence-in-chief is that he told her that he found his girlfriend with this man in the car, he caught them in the car and "he actually stabbed and injured either his girlfriend or the driver. So he did realise and he did know at the time, if her evidence is to mean anything, that he had stabbed one of them. So his whole story that he didn't know whether he had injured somebody is not only improbable but is one of the more emphatic lies. Knowing what is common cause and considering the fact that the weapon he used went into the body, it was a fatal wound, a direct stab movement, he must have felt that his knife had gone in, that he had hit, succeeded in hitting the body and in all probability would have had the blood on his hand, on the side of his left hand where he held the handle of  the knife.     If  there was  any sort of cut on his hand it could have been caused by the blade of his own knife when he drove it into the body of the deceased right up to the hilt.

The evidence of the witness called by the Court namely the witness ex Sergeant Petrus was very persuasive. Once you have the position that he was an experienced investigating officer, according to an answer elicited by Mr Christians, he had investigated many murder cases, he told the Court of the procedure, he came here without a statement and without knowing what the Court was going to ask him or what counsel was going to ask him and he set out immediately what had happened, namely: that a knife was not given to him; that he did ask for the knife; he did go to the scene, but there it could not be found. Now he is corroborated by the circumstance that the practice is to write that into an exhibit record. The practice is further to note the number of the exhibit and it is impossible to believe that this investigating officer would not have handed in the knife, if given to him. If the evidence by the accused was that this policeman never asked him for a knife, that would be a different scenario. If he was drunk, or was bribed to remove the exhibit as it often happens, then it is a different story, but here it is common cause that this detective did ask for the knife and in those circumstances the fact that no exhibit was handed in, that there is no entry in the records or in the docket, leaves no doubt whatsoever that the Court must accept the evidence of this policeman, Mr Tommie Petrus. That means that on that clear point   of   conflict   the   accused   had   told   the   Court   a   lie without any doubt about at least the exhibit, the knife. Now, the reason and the probable reason why he told a lie is that the knife was not an innocent pocket knife as he told the Court, with about a 5 cm blade, it was a bigger knife, a more atrocious knife if one looks at the uncontested evidence of the doctor who did the post mortem examination. The doctor also said that the edges of the wound were clear cut. So it is not a question of, both edges, not a question of a pocket knife with, on the one side a blunt side and on the other side a cutting side, it was a wound with clear cut edges and so, without finding that it had this effect, it was probably a knife which had two cutting edges. But what it dees help to prove is that the knife was not handed by the accused to the policeman and obviously there can only be one reason namely that he did not want to have that type of exhibit against him before Court if there is a prosecution. And he wanted to have it open to him to say, as usually happens in such a case when the weapon isn't there, oh well, I just had a small pocket knife like this or that. The Court rejects the story that he had a small pocket knife. I must also point out that the entrance wound was 3 cm broad in length, that means wide. 3 cm indicates without doubt a rather large blade of a knife at least where the blade reaches the handle. So 3 cm shows that this is not a small, so-called Red Cross knife with one cutting side, no sharp points and a blunt side on the other side. So here then one can start off with one important fact in the dispute where the accused was clearly lying to the Court.

I have dealt with the impression the witnesses made on the
Court. I have dealt with some of the probabilities and if there was time one could spell out many more. The fact is the accused did strike the deceased. The fact is that there is no evidence against that of the driver that the deceased was sitting on the passenger side of the vehicle. The accused gave several versions about where she was sitting, viz that he saw her sitting, moving up to the driver and so on. In the end the best he could come forward with is that he presumed and it must have been that she had moved on to a position next to the driver. So there is nothing to controvert the driver's evidence that she was sitting as a passenger in actual fact on the passenger side, just before the stabbing. That is further corroborated by the evidence of the witness Klasina Harobes who, when she saw the body still in the car of the deceased, that deceased's lower part was on the passenger seat and she was just leaning with her head onto the driver as a person would who has no control over your limbs because you are partly or wholly unconscious ac the time and you lean against the support that's available. So, the fact then which the Court finds is that the deceased sat on the passenger side when stabbed. Now, if she sat on her side when she was stabbed, then the accused's story that he put in his arm right over the centre of the seat as he wanted to stab the driver, cannot be true, because the deceased was in fact and hit when she sat on the passenger side. So if he ever put in his arm right up to the driver as far as he can and tried to stretch it right up to the driver, he could not have struck her, she wasn't there to be struck. So then the only conclusion there is that he struck her where she was sitting on the passenger side by deliberately wanting to strike and injure her. And that is the only way he could have struck her. His whole story about a long arm reaching out to the driver is totally improbable. What is further obviously a concoction and a fabrication is his belated allegation that he actually wanted to stab the driver on his left hand shoulder. Now if he wanted to do that, surely he couldn't think that he could do that without looking into the cabin, without knowing where the people are sitting and so on. The accused on all the probabilities was obviously very annoyed, not only with the driver, but certainly equally, if not much more annoyed with his girlfriend, because it is she who now goes out or has some relationship or other with another man. And it was she who said, drive away and she was frightened and that is common cause. So, a great part of his anger and his revenge would have been against her. If not, why did he not speak to her? Why did he not ask her anything? He said he wanted to ask her when he jumped on, but he never did. Why not? So he had the motive to stab her, he was angry, obviously, with her, he was jealous and he wanted to take it out on her.    That seems a probability.

There are many other small points in dispute that one could deal with, but to sum up: I accept the evidence of Dr Moisel, Mabedi and Harobes. I accept that the witness, Clifford Molander probably did not see any wound or blood on the accused, but he could have made a mistake. And as I have said I accept fully in toto the evidence of Tommie Petrus. That means also that I reject the story and the defence of  the accused in so  far as  it  conflicts with the version of the aforesaid State witnesses. Before I conclude I must mention that I asked counsel to address me on the following interesting and important legal question: A person who intends to murder A, but by some miscalculation or error now kills B, could he be convicted of the murder of B and if so, on what basis. I am happy to say that on short notice both counsel submitted very valuable and well-reasoned written submissions to me. I have my doubts about the alleged present state of South African law on this issue. It seems to me that it would be the height of injustice if a person can escape proper punishment by intending to kill one person, doing everything possible to kill that person, but then kills another by miscalculation. In substance he has then committed murder, whether it is on cne person or another. The identity of the person should noc be decisive. But that remains a complicated issue. I need not make a finding on that issue of law today. It is my belief however that this type of legal issue should be settled by legislation at the earliest possible time. I don't; necessarily accept the submissions and the conclusion by both state counsel and defence counsel, but I do not say they are wrong and I do not decide that issue now because it is not necessary for the purpose of my judgment.

In the result:

You are found guilty of the crime of Murder.
CASE NO.  CC 12/96
IN THE HIGH COURT OF NAMIBIA
In the matter between

versus
MICHAEL IVAN OXURUB CORAM:        O'LINN,  J.

Delivered on:    1996-02-29

SENTENCE

The personal circumstances you have put before the Court are that you are the father of two minor children. There is no indication whatsoever whether you take the responsibility for these children by maintaining them. There is also no indication that the children will suffer if you go to prison for an unduly long period. In those circumstances the fact that you have two minor children cannot be regarded as a mitigating circumstance of any importance. What is important in your personal circumstances is that you have not previously been convicted of a criminal offence or any crime. The fact that you are a first offender must be taken into consideration as a serious mitigating factor. I must point out, however, that most of the crimes of murder are crimes where the accused persons are first offenders. That notwithstanding, the Courts in the past have often sentenced first offenders to death and subsequently when that could not be imposed, the Courts often imposed a sentence of life imprisonment on people who are first offenders. So although I must take that into consideration as an important mitigating factor, that alone does not mean that you should not go to jail for a long period.
You have also testified that you most of the time had a job and you actually reached the stage of standard ten at school but you failed that standard. It is a circumstance in your favour that you apparently, most of the time, intended to better yourself and to obtain proper employment. It does not seem to me that it can be said you are a person who make no contribution to society and who is just a liability.

found her sitting in a vehicle with another person namely Mr Moses Mabedi and the Court accepted his evidence to the effect that at- the time when you arrived on the scene he was talking to the deceased and there was no hugging or kissing and obviously no intercourse. You were not placed in a position by what you saw which would deprive a reasonable person or even any other person of their control over the situation. Your actual action as unfolded before Court in accordance with the State evidence as well as your own was that in the course of this situation leading up to the stabbing you basically contemplated every step. You knew what you were doing and you decided on going onto the next step. So this was not in that sense a crime of passion where you lost control and where it could even be said that any human being would have been so incensed by the situation which he came upon that he could not control himself or herself properly. When I consider this crime I do regard your relationship, the fact that you must have been emotional, as mitigation to some extent but not a factor of great weight as it may have been if it was a classical situation where husband or wife finds his partner in the act of adultery with another person.

You killed the deceased by stabbing. Stabbing has become and remains and is increasingly a method used by too many people in this society to settle their problems by getting rid of their adversary or someone else by using dangerous weapons such as a knife. The knife was not produced before this Court but the Court found that you lied about the knife and that the knife was probably much bigger,   if the Court considers the medical evidence, as you alleged. The Court also found that the only reason for your lie regarding the knife was probably that it was a much bigger weapon. The crime was also on a person who was undefended. That means a young girl. There is no question whatsoever of self-defence of any sort in this case. That aggravates your crime.

particularly during the evidence in mitigation you repeatedly attempted to deceive the Court. You repeatedly told lies deliberately. To mention only some is that during the stage before conviction you, well-knowing that the deceased is dead and cannot controvert what you say, gave out that you had a wonderful relationship with this deceased. There were no quarrels between you. There were no assaults. You emphatically denied that. Here today at the stage of sentence you were confronted by allegations by witnesses who are not dead such as the deceased, but who are alive  and who  could  corroborate   to  some  extent   that  you

actually had a bad relationship for a substantial period of time with the deceased and that in fact you had actually assaulted her. You admitted in your own words, when confronted, that there were several assaults. Your excuse was that that was in the course of arguments and you further testified or admitted that this was by means of giving her a beating with a belt. Although you denied that you ever previously sat on the deceased with a knife in your hand when she was sleeping, the evidence before Court by Ida Skrywer is that you, in her presence, apologised for having done precisely that, namely sitting on the deceased with a knife and that is how the deceased saw you when she woke up out of her sleep. So although your counsel put it that you deny that you had ever done that, what was not denied and what was not controverted is Ida Skrywer's evidence that you actually apologised for that act. So on the available evidence I must accept that you on a previous occasion was sitting in a threatening position on the deceased. It was also not directly placed in dispute with the witness Ida Skrywer that on one occasion the deceased came to her and showed certain wounds. She had a wound on her head and she had a stab wound on her finger. That the deceased had such wounds was not disputed by you. I accept that the picture of an idyllic relationship drawn by you from the start was false and that you in fact had assaulted the deceased from time to time and that the use of a knife was not out of your mind.

You also tried to get away with lies when you told this Court that the Court  should consider that you had already been in imprisonment for eight months. Eventually, when you were confronted with this lie, you said four months. As a matter of fact, it turned out to be in the region of two and a half months that you were in prison. So unfortunately when you say to the Court that you are sorry, that you have true regret and so on, that was accompanied by trying to deceive the Court about important and relevant facts. The fact that you were lying on several occasions detracts from the possibility of giving any weight to any regret that you may have. It seems to me that, although you may have regret that a person with whom you had a relationship has died, your greatest regret at.the moment is that you will probably face many years of imprisonment.

In all the circumstances it seems to me that the Court will be failing in its duty to society and to the victim if the Court does not impose a heavy sentence of imprisonment. I have seriously considered imposing on you a sentence of life imprisonment, but in view of some of the mitigating factors that I have mentioned I have decided not to impose life imprisonment. In the result the sentence that I impose on you is the following:

Seventeen (17) years imprisonment.