s v kenneth orina :trial within trial

8/7/2019 S v Kenneth Orina :Trial Within Trial

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Reportable CASE NO.: CC 12/2010

IN THE HIGH COURT OF NAMIBIA

HELD AT OSHAKATI

In the matter between:

THE STATE

and

KENNETH BUNGE ORINA

CORAM: LIEBENBERG, J.

Heard on: October 05; 06; 11 13; 18; 19; 21, 2010.

Delivered on: January 18, 2011.

JUDGMENT

TRIAL-WITHIN-A-TRIAL

LIEBENBERG, J.: [1] This is a trial-within-a-trial where the Court is required to

rule on the admissibility of five documents the State wants to rely on in proving the

guilt of the accused. Whereas defence counsel objected to the admissibility of the


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respective documents the Court ordered a trial-within-a-trial in which the

admissibility of each of these documents had to be determined.

[2] The objection lies against the following documents: (i) Proceedings held in

terms of s 119 of Act 51 of 1977 before magistrate Hangalo on November 20, 2007;

(ii) photo plan and explanatory key and notes in respect of a pointing out made to

Detective Chief Inspector Kurz on November 15, 2007; (iii) photo plan and

explanatory key and notes in respect of a pointing out made to Detective Inspector

Marais on November 20, 2007; (iv) a confession/admissions as documented by

magistrate Nicolaides on November 14, 2007; and (v) a document styled

Identification of Body (Pol. 51) dated November 22, 2007.

[3] Defence counsel objected to the admissibility of these documents on the basis

that the admissions and pointing out made by the accused came as a result of physical

assaults perpetrated on him by members of the Namibian Police; that he was

subjected to inhuman and degrading treatment during his detention at Oshivelo police

cells; that he was subjected to continuous interrogation by the investigating team; that

promises were made to him about better detention facilities and that the handcuffs

would be removed from his wrists. All these, it was contended, happened in the two

weeks preceding the accuseds appearance before magistrate Nicolaidis, to whom he

made certain admissions. The making of these admissions were not disputed. The

same applies to the s 119 proceedings and according to the accused, what he had

narrated to both magistrates at different stages, was not done freely and voluntarily as

it emanates from the assaults perpetrated on him and came as a result of the ill-

treatment he received during his detention. It was furthermore stated that what the

accused had related to the magistrates and what was recorded in those documents,

were fabrications three unidentified police officers forced him to admit and narrate to

the magistrates, respectively. The pointing out made to officers Kurz and Marais

were done under the same circumstances. It was further stated that the signing of a

document, according to which the accused identified a body as that of his wife, came

as a direct consequence of an assault perpetrated on him by the investigating team at

Windhoek police mortuary.

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[4] Where the admissibility of statements made by an accused is contested on the

basis of involuntariness on the part of the accused, the court is required to determine,

by means of a separate enquiry, into the admissibility thereof and this is generally

referred to as a trial-within-a-trial. The court is only required to consider the

admissibility of the statement in dispute and not the content thereof i.e. the facts,

while the State has the burden of proving beyond reasonable doubt that the maker of

the statement acted out of his own free will and without undue influence when making

the statement, or making any pointing out. In addition to the requirement of

voluntariness, the State must further prove that the accused person was in his or her

sound and sober senses and had not been unduly influenced. Because the accused

admits that what had been recorded by the respective magistrates and police officers

engaged in the pointing out correctly reflect what he had narrated to each on different

occasions, the content of these statements are irrelevant for purposes of this enquiry.

It would therefore be of no significance at this stage to know whether the accuseds

narrative amount to a confession or merely admissions.

[5] Besides the judicial requirements for admissibility of admissions and confessions

by an accused person provided for in ss 217 and 219A of Act 51 of 1977, the

Namibian Constitution in Article 12 also gives an accused person the right to a fair

trial (12 (1)(a)); the presumption of innocence until proven guilty according to law

(12 (1)(d)); and the right against self-incrimination. Evidence obtained from an

accused in violation of Article 8 (2)(b) is furthermore inadmissible (12 (1)(f)). Article

8 (2)(b) of the Namibian Constitution reads:

No persons shall be subject to torture or to cruel, inhuman or degrading treatment

or punishment.

Background

[6] In order to fully understand the circumstances surrounding the arrest and

detention of the accused it seems necessary to briefly mention other events unrelated

to this case, but which directly impacted on the police investigation and the detention

of the accused whilst in the holding cells at Oshivelo police station.

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During 2007 a special unit was established within the Criminal Investigation

Department of the Namibian Police called the B-1 Butcher Unit which was

specifically tasked to investigate the serial killing of female persons in and around

Windhoek whose bodies were thereafter dismembered and dumped at different places

along the B-1 main road; hence the name B-1 Butcher given to those cases.

Therefore, when black plastic refuse bags containing dismembered body parts were

found in Grootfontein on the 17th of September 2007, the B-1 Butcher Unit was

dispatched to Grootfontein and spearheaded the initial investigation. It then seems

that against that background, the investigating team at the time of the accuseds arrest,

had reason to believe that they were dealing with the person referred to as the B-1

Butcher because of the similarity found between the cases i.e. the dismembering of

the bodies. This time however, the body parts were not found along the B-1 main

road but in the surroundings of Grootfontein.

[7] There can be no doubt that the arrest of the accused as the B-1 suspect, was a

high profile case and that specific precautionary measures would be put in place to

secure his custody. That is evident from the instructions given at regional level that

the accused had to be detained in solitary confinement at Oshivelo police station; that

he had to remain in handcuffs at all times; and that he was not entitled to receive

visitors whilst so detained.

[8] Because of the specified conditions under which the accused was kept at

Oshivelo, the accused contended that these amounted to being subjected to inhuman

and degrading treatment in that he was kept under unhygienic conditions as the cell

in which he was kept had maggots; rats and bedding (infected) with bedbugs; and the

toilet full of human faeces. He was kept in a cell where direct sunlight fell into the

cell, which was very tiny. It was also put to some State witnesses during cross-

examination that promises were made to the accused that, should he confess to having

committed the crime; the conditions under which he was detained at Oshivelo would

improve. In addition thereto, that he was assaulted by some members of the

investigating team as well as by three unidentified police officers, who assaulted him

on different occasions whilst coaching him into memorising and reciting certain

events implicating him in the commission of the murder under investigation. He was

also taken to different scenes where information was dictated to him and after being

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tortured, he was required to rehearse mock incidents of pointing out. It was submitted

on the accuseds behalf that the Court should therefore find the statements and the

different pointing out made by the accused to the police, not to have been made freely

and voluntarily; but that the accused, when he so acted, was under undue influence.

Accuseds detention and Assaults

[9] I shall first deal with the conditions under which the accused was detained at

Oshivelo police station and the alleged assaults perpetrated on him, in order to

determine whether it had any impact on the subsequent statements and pointing out

made by the accused, and if so, to what extent.

[10] For reasons, none other than convenience, I shall deal with the accuseds

allegation of assault and mistreatment, first.

[11] It is common cause that the accused was arrested in Grootfontein at around

noon on 30 October 2007 by the investigating team namely, Detective Sergeant Hoa-

Khaob; Detective Warrant Officer Gomeb; Warrant Officer Kandjimi; and Detective

Sergeant Eibes on a charge of murder. At that stage he was suspected of being the

infamous B-1 Butcher. After a search was conducted for the accuseds wife, he was

taken to the offices of the Criminal Investigation Department Grootfontein, where he

was interrogated. At around 21:00 he was taken to the police head quarters at Tsumeb

where the interrogation continued and where he was allegedly assaulted.

[12] According to the accused the Regional Crime Co-ordinator, Chief Inspector

Blaauw, joined them at midnight whereafter photos of dismembered persons were

shown to the accused and the interrogation continued until he was taken to Oshivelo

police station. There instructions were given that the accused had to remain in

handcuffs at all times. Accused said that from the clock in the vehicle he was

transported in, he could see that it was 2:00.

[13] I pause here to observe that the accuseds evidence relating to the time they

were joined in Tsumeb by Chief Inspector Blaauw (00:00) and their departure to

Oshivelo (2:00), is not supported by an entry made in the Occurrence Book (No.

1589) at Oshivelo police station upon their arrival, reflecting that the accused was

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already booked in at 23:59 on the 30 th of October 2007. The entry furthermore states

that the accused was free from injuries and no complaints. Entry No. 1592 made at

00:30 reads: Report: By D/W/O (2) Shidute(?) that all at the charge office sergeant

are under instruction that suspect as detained OB1589/10/07 is put in separate cells

being handcuffed and no visitor to him and serious surrounding inspection to be done

every hour to avoid escape, convey this massage to other shift O/S.

[14] Bearing in mind the circumstances in which the accused found himself in at the

time, one might be inclined to accept that the accuseds reference to time might not be

correct or even relevant to the issues in dispute; however, when testifying, the accused

was very meticulous when referring to dates and times and what persons had said at

specific stages of the investigation and clearly relied thereon in an attempt to discredit

the States witnesses. In some aspects reliance was also placed on specific time

periods i.e. why the accused was only returned to Oshivelo several hours after he had

seen magistrate Nicolaides that afternoon. Therefore, the Court will have regard to

time frames relied on by the accused in his defence. As for the correctness of the time

recordings reflected in the Occurrence Book for the period of the accuseds detention

at Oshivelo police station, this was never disputed and there is no reason why those

recordings should not be relied upon as being correct.

[15] On the accuseds version he was assaulted several times by different persons

and these assaults can be summarised as follows:

The first incident took place in an office at the police head quarters, Tsumeb, on the

evening of his arrest when a wooden log was thrown at him, hitting him on the

lower abdomen and genitals; causing him intense pain and resulting in him falling

down onto the floor. Besides stating that he was assaulted by Warrant Officer Gomeb

and Sergeant Hoa-Khaob, who threw the log at him and kicked him, the accused was

not clear during cross-examination as to exactly who did what to him. Accused

further said that after the Regional Commander entered the office (later), he reported

to her the assaults perpetrated on him and only after she had spoken to the officers

(which the accused was unable to follow), the assaults stopped.

During the cross-examination of Warrant Officer Gomeb, it was put to him that he is

the one who threw the log on the accuseds abdomen and kicked him on his feet;

whilst to Sergeant Hoa-Khaob it was put that he also kicked the accused. Both

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officers denied these allegations. The accused contradicted himself during cross-

examination by denying that he had fallen onto the floor at the time; and when asked

to explain the discrepancy, he said that he could not exactly recall. This begs the

question, as to why then did the accused state it as a fact that the pain was so intense

that he fell to the floor, if he was unable to recall what had happened?

[16] Both Sergeant Hoa-Khaob and Warrant Officer Gomeb disputed allegations of

assault perpetrated on the accused by them. Hoa-Khaob confirmed that the accused

was indeed taken to their head quarters for reasons, amongst others, to obtain

instructions on the accuseds further detention. He said that although Warrant Officer

Gomeb entered the office in which they were with the accused, he never partook in

the questioning, as he was attached to the Scene of Crime Unit and thus, not part of

the investigating team. Gomeb confirmed this and said he merely entered the office

to ask Chief Inspector Blaauw about exhibits, whereafter he exited the room.

[17] The accused further testified that he was without food for the first two days

which left him tired and weak. When pointed out to the accused in cross-examination

that this aspect of his evidence was never raised with Sergeant Hoa-Khaob under

cross-examination, the accused explained that he forgot to tell his lawyer about it.

And, neither was Hoa-Khaob questioned about him slapping the accused after his first

appearance in court. Without giving convincing reasons, accused merely stated that

he forgot to convey to his lawyer everything that had happened at various stages and

about every assault perpetrated on him. This obviously brought about that crucial

aspects of the accuseds evidence, pertaining to the alleged assaults, were not

addressed in cross-examination of the State witnesses, implicated by the accused. I

shall return to this issue later herein.

[18] The second and further incidents of assault on the accused were, according to

him, committed by Warrant Officer Gomeb and three unidentified police officers on

diverse occasions between the 3rd and the 11th of November 2007. Accused said that

the first of these incidents was when he was fetched from Oshivelo by Gomeb and

three unidentified police officers on the morning of the 3 rd. After a blood sample of

him was taken at Tsumeb hospital, they drove the accused to Grootfontein where he

was shown different scenes, allegedly where his wife was killed and her body parts

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dumped near the hospital and in the surrounding bushes. Accused was required to

memorise these scenes and when unable to do so, they revisited the scenes; whereafter

he was taken into the bushes, tied up and threatened to be killed with a firearm unless

he confessed to having killed his wife. He was kicked and hit with a belt to the point

where he broke down in tears and said they could kill him whilst the barrel of a

firearm was pushed into his mouth. A fabricated story as to how he allegedly had

killed his wife was read out to him and which he had to repeat. He was thereafter

required to recite what he was told, and when unable to do so, he was further

assaulted. Accused said this torturing lasted until late that night. After untying him,

Warrant Officer Gomeb drove him back to Oshivelo police station.

[19] According to the accused the three unidentified police officers, during the night

of the 6th and the 8th of November 2007, entered his cell and told him that he had to

recite the fabricated story about him having killed his wife. Whenever he did not

perform to their liking, he was assaulted and on the night of the 8 th a wet blanket was

wrapped around his head, almost suffocating him in the process. This was after the

accused said that he would report them. As before, they were dressed in uniform.

When he reported the incident in the morning, the police officers on duty did not

believe him and said that he had been dreaming.

[20] He said that on the 10th of November 2007 the same three officers fetched him

from Oshivelo whereafter they returned with him to the different scenes visited before

in Grootfontein, and when he was unable to repeat what they had told him previously,

they again assaulted him. They visited the scenes twice, during which the accused

recited the fabricated story. He was then taken back to Oshivelo, but again fetched

the following morning (the 11th) which would be his day for testing. There was

some role play between the police officers pretending to be the magistrate; prosecutor

and investigating officer, while the accused was required to narrate to them what had

happened. He was also shown certain landmarks at the different scenes to remember

with the view of a future pointing out and was shown where and how to stand, whilst

doing so. He was warned not to inform anyone about what they had told the accused

(the fabricated story). Accused said that because their torture was so intense,

accompanied by trauma, he decided to do whatever they expected from him. He went

on to say that during that period he was urinating blood; had dizzy spells and fainted

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at times, due to lack of sleep, which was caused by him being tortured by the police

during most of the nights.

[21] The last incident of an alleged assault took place at the police mortuary in

Windhoek on the 22nd of November 2007, when he was beaten by Sergeant Hoa-

Khaob and Warrant Officer Kandjimi upon him informing them that he was unable to

identify the person as his wife. He said that after their return to Oshivelo his cell and

toilet were cleaned and in working condition; generally, that conditions pertaining to

his detention at Oshivelo improved and remained as such until his transfer to Oluno

Rehabilitation Prison on the 4th of January 2008.

[22] Despite the detail in which the accused testified, his version in some respects,

became somewhat muddled under cross-examination for instance, he was no longer

sure of the sequence in which they visited the different scenes and stated I cant say

categorically what they did. He contradicted himself as to the stage they had told

him to keep quiet about their actions and involvement with him; on how many

occasions they had taken him to the different scenes; and at which stage he was

assaulted. When asked whether he sustained any injuries as a result of the assaults on

him he replied: Yes, but I cant say about the injuries I was just beaten and

there could have been (injuries). Bearing in mind that the accused is a registered

male nurse, I find his response surprising, especially where he was beaten with a belt.

Regarding the assaults at night in his cell, the accused, under cross-examination, also

contradicted himself. In chief he said that the incident when a wet blanket was

wrapped around his head took place on the 8th, but then changed that to say that it

happened on their first visit to the cell, being the 6th of November. He also changed

his version as to what each person did at the time. This he explained by saying that he

became mixed up and was unable to confirm what he had said in his evidence in

chief. The same applies to him having said at the time that he would report the

officers, something he denied under cross-examination but explained that it could be

a mix up of ideas. When asked whether he reported these assaults to anyone,

accused said that he once told the police at Oshivelo but when asked to provide

names, he was unable to name these persons. When reminded that he at least knew

Gomeb, who had also assaulted him and whom he could have reported, he replied that

he was unable to answer the question.

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[23] On the events of the 10th of November 2007 the accused also gave conflicting

versions. Although he stated in chief that he was also beaten on that occasion, he

seemed to have been less certain of that fact under cross-examination and said that he

was not sure about it. He actually said: Im not sure I dont think they did and

when reminded of what he earlier had said (that he was beaten) and asked to explain

how he was assaulted, the accused replied: Im not sure unless Im reminded.

Accused also contradicted himself on the number of times they had visited the

different scenes on that day and whether he was assaulted or not the following day.

[24] As regards the promises made to him about an improvement in the conditions

under which he was detained, accused said that he did not believe Deputy

Commissioner Khariseb or the three unidentified police officers when making these

promises to him. Now if the accused did not believe that what was promised to him

would materialise, it seems to me, that even if promises were made to the accused in

that regard, then he was not influenced thereby to act in any specific manner to

achieve what was promised to him and therefore, it cannot be said that he was unduly

influenced on that point.

I accordingly find that the ground raised by the defence in its objection against the

admissibility of statements made by the accused about promises having been made to

him by police officers, to improve on the conditions under which the accused was

detained, should he confess, is without merit.

[25] I have alluded to the evidence of Warrant Officer Gomeb and Sergeant Hoa-

Khaob, both disputing the accuseds allegations of assaults perpetrated on the accused

by them. Inspector Ndhuulivali was the Station Commander at Oshivelo police

station during the whole period of the accuseds detention at Oshivelo and he testified

that he regularly visited the cells as part of his duties and on no occasion did the

accused report to him any assault perpetrated on him. As regards the cell in which the

accused was detained, Ndhuulivali said that the cell was like any one of the other cells

and the only complaint the accused lodged at the time was that the toilet was not

flushing properly; which he addressed immediately and was attended to. He

confirmed that they had received instructions that the accused had to remain in

handcuffs at all times; and that he had to be detained separately, as he was seen to be

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a flight risk. He denied that the accused was cuffed with his hands behind his back as

alleged. He said that notwithstanding the accused being handcuffed, he still would

have been able to help himself in the bathroom. Regarding the alleged assaults

perpetrated on the accused at night in the cell, Ndhuulivali testified that no person had

access to the prisoners, and in his view, it would not have been possible for police

officers from elsewhere, to have entered the accuseds cell at night and assault him as

he claims.

[26] The State, through the testimony of Inspector Ndhuulivali, introduced into

evidence three Occurrence Books (Nos 117 119) from Oshivelo police station,

covering the period of the accuseds detention and which reflect the accuseds

movement during that period. The correctness of the entries made referring to the

accused, were not disputed. Not all the entries made in respect of the accused confirm

the accuseds version. In fact, it contradicts his version in material respects as will be

shown infra.

[27] I have already alluded to the fact that the accused was booked in before

midnight on the 30th of October 2007 and therefore he could not have been kept at

Tsumeb until 02:00, as he claims. The movement of the accused, as reflected in the

Occurrence Books (hereafter referred to as OB registers), for the period 31 October

until 01 November, mainly corresponds with the accuseds evidence covering that

period.

[28] On 03 November 2007 two entries were made concerning the accused, namely,

that Warrant Officer Gomeb booked him out at 08:37 (entry no. 133) and again

booked him in at 11:51 (entry no. 142). This contradicts the accuseds version that

Gomeb and three unidentified police officers took him to the different scenes at

Grootfontein where they assaulted him until late into the night before returning him to

Oshivelo. Given the distance between Oshivelo and Tsumeb it seems most unlikely

that there would have been time to drive the accused to Grootfontein after a blood

sample of him was taken at the hospital in Tsumeb within the time frame of (less

than) three hours let alone driving him to different scenes several times and

subjecting him to protracted assaults. If the accused was back at Oshivelo at noon,

then that would simply not have been possible. Therefore, the accuseds contention

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that he was at Grootfontein until late that night, is neither supported by the evidence

nor the probabilities.

[29] The same applies to the alleged events of 10 and 11 November during which the

accused was taken back to the different scenes at Grootfontein by the three unknown

police officers, who coached him over those two days and during which he was again

assaulted occasionally. There is no entry in the OB register on either of the dates

reflecting that the accused was booked out/ in during the period the accused claims to

have been in Grootfontein and manhandled by the unknown police officers.

According to the OB register the accused remained in the police cells from the time

he was booked in by Warrant Officer Gomeb on the 3rd until the 14th of November

when Sergeant Somseb collected him and took him to Grootfontein; where he

appeared before magistrate Nicolaidis for purposes of making a confession.

[30] As regards the allegation that the three unidentified police officers visited the

accused at night in his cell, this possibility was not only ruled out by Inspector

Ndhuulivali, but there are also no entries in the OB register on 06 and 08 November

2007, confirming the alleged visits. The accuseds claims are thus unsupported by the

facts.

[31] Should the Court find that the accuseds version is true and that he was indeed

assaulted, manhandled and humiliated as he claims, then any self incriminating act or

statement made by the accused thereafter would be inadmissible as evidence in the

main trial; as the sole purpose thereof was to force or influence him and extract

information and admissions from him, favourable to the State. In those circumstances

he would have been under undue influence and as such, cannot be seen to have acted

freely and voluntarily during the making of statements or any pointing out. Thus, the

admissibility of the five documents under consideration would firstly depend on the

requirement of voluntariness on the part of the accused before consideration is given

to the other requirements like the accuseds rights to legal representation.

[32] The approach to be followed by the Court in its assessment of the evidence

presented during trial-within-trial proceedings is the same as that during an ordinary

trial namely, that the Court should apply its mind not only to the merits and the

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demerits of the State and the defence witnesses, but also to the probabilities of the

case. The Court should be careful not to consider the evidence in compartments and

focus too intently upon separate and individual aspects of the evidence, but rather to

consider it in its totality and make its finding in view ofallthe evidence (S v Hadebe

and Others, 1998 (1) SACR 422 (SCA) at 426e-g; S v Singh, 1975 (1) SA 227 (N) at

228F-H).

[33] As far as it relates to the assaults perpetrated on the accused he, on his version,

was subjected to severe physical assaults over a period of two weeks and during

which he experienced intense pain. He was struck in the abdomen and genitals by a

log forcefully thrown at him; kicked; slapped; pinched and repeatedly beaten during

this period; but on his own version left without any visible injuries. This is

consistent with the respective entries made in the OB register every time the accused

was either booked in or out, stating that he was free of injuries and without

complaints. From the evidence of Inspector Ndhuulivali it is furthermore clear that

the accused never complained to him during his cell visits, except for the toilet which

he reported. The only proof of assault on the accused is only to be found in his own

evidence namely that, as from the morning after the first assault at the police head

quarters at Tsumeb on the day of his arrest, he noticed blood in his urine, which

condition continued up to the end. This he tried to prove through the testimony of Dr.

Kabangu, who only examined the accused on 16 May 2008, six months after the

alleged assaults. The doctors findings do not support the accuseds evidence as,

according to him, the traces of blood cells in the accuseds urine at the time could

rather be contributed to a medical condition, like infection or high blood pressure,

(which the accused was suffering from), and not as a result of an assault committed on

him in the past. He further testified that the accused mentioned to him that he was

tortured, without explaining in what way. He further explained that had the accused

been hit violently on his genitals, then he would have experienced difficulties in

passing urine; his testis would have been swollen and he would have suffered from

abdominal pain none of which was present during his examination. I pause here to

remark that Dr. Kabangu said that the presence of blood cells in the accuseds urine

was only determined by the dipstick method and that it was not visible to the naked

eye.

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[34] From the medical evidence it may be concluded that, although there were traces

of blood cells picked up in the accuseds urine, this is not indicative of an assault

perpetrated on the accused prior to his examination; and in all probability, this was as

a result of an ailment the accused suffered from.

[35] When the accused was taken to Dr. Kabangu on the 1st of November, he (the

accused) had already observed blood in his urine, yet, he makes no mention thereof

and when asked to explain his failure, he said that he forgot to mention it. This,

despite the accuseds claim that he told the investigating team on the same day about

the blood he had observed in his urine and that he wanted to see a doctor. Also, when

a second blood sample was taken by a nurse at Tsumeb hospital two days later, he

again failed to make any mention about his medical condition to her. There can be no

doubt that the accused considered his medical condition as serious and therefore

sought treatment. Why then would heforget to raise it with medical officers at the

time; and could it be that his condition at the time was not as he now claims? From

the accuseds version there is no reasonable explanation why he failed to raise his

concerns over his medical condition with the medical officers, as both were in the

position to address it. Furthermore, on the States version the accused, at no stage

during his detention at Oshivelo, made a report to any one of several persons with

whom he came into contact, about assaults perpetrated on him or injuries he

sustained. Even when he later on appeared before two different magistrates and

commissioned officers, he made no mention thereof. The first report made by him to

that end was when he told Dr. Kabangu in May 2008 that he was tortured; without

mentioning to what extent. This first report made by the accused amounts to self-

corroboration; and in the circumstances, I do not find it to show consistency in his

version. The entries made in the OB register from the outset reflect that the accused

was free of injuries and on his own version; he never tried to show otherwise.

[36] Bearing in mind to what lenghts the accused went to discredit the State

witnesses (as shown later herein) and the exaggeration (to his benefit), of certain

conditions prevailing at the time, I am not convinced that the accused succeeded in

casting doubt in the Courts mind on the truthfulness and credibility of the evidence

given by Warrant Officer Gomeb and Sergeant Hoa-Khaob about the events taking

place at Tsumeb police head quarters on the night of his arrest. These witnesses

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testified in a forthright manner and were not discredited during cross-examination.

Thus, there is no reliable evidence from which it might be concluded that the accused

was assaulted by members of the investigating team (or anyone else), on the night of

30 October 2007. I accordingly so find.

[37] The accuseds allegations of assault by the tree unidentified police officers lose

further credibility if regard is had to the time frames testified on by him and during

which the alleged assaults should have occurred. According to the accused these

assaults were of serious nature as he was beaten several times all over the body; he

was almost suffocated with a wet blanket; and subjected to intimidating tactics where

the barrel of a firearm was pushed into his mouth, accompanied by threats of being

killed. All this happened at stages where the records kept at Oshivelo police station

(i.e. the OB register) reflect that the accused was in the cells and without unwanted

visitors. The alleged visits to his cell would also have been with absolute

inobservance of specific orders given by officers in higher authority, namely, that no

visits would be allowed for the accused. I have already alluded to the fact that the

accused was meticulous in his evidence relating to dates and time frames and relied

thereon in order to cast doubt on the States case. It would therefore be unlikely that

he could have confused the dates and that the assaults had taken place on different

dates. In any event, that was not his testimony. The State witnesses furthermore

disputed the accuseds allegations that he was assaulted at any stage, albeit in

Grootfontein or in the cells at Oshivelo, as the accused claims; and there is nothing

showing that they should not be believed. In the absence of any other logical

explanation proving otherwise, the only conclusion to be reached on the facts is that

the accuseds evidence about assaults perpetrated on him on the 3rd; 6th; 7th; 10th and

11th days of November 2007, is fabricated and as such false. It is accordingly rejected

where in conflict with the evidence given by the State witnesses relating to the alleged

assaults perpetrated on the mentioned dates.

[38] The omnipresence of the three unidentified police officers during the accuseds

court proceedings and subsequent incidents of pointing out only surfaced during the

States cross-examination and this was never put to either Warrant Officer Gomeb or

Sergeant Hoa-Khaob when they testified. I find that surprising because the accused

specifically advanced tht as the reason why he decided not to inform the magistrate

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about him being assaulted and dictated to, to confess to the murder. The presence of

one of these persons at crucial stages of the investigation was, according to his

evidence, the main reason why he did not speak out when circumstances required him

to do so. As stated earlier, it would appear that there are crucial aspects of the

accuseds evidence about the assaults perpetrated on him, that he simply forgot to

mention to his legal representative; and whereas she was oblivious of these

allegations, she could not address those issues with the respective witnesses during

cross-examination. I therefore fully endorse the sentiments expressed in S v Boesak,

2000 (1) SACR 633 (SCA) at 647c-i where Smalberger JA stated:

it is clear law that a cross-examiner should put his defence on each and

every aspect which he wishes to place in issue, explicitly and unambiguously, to

the witness implicating his client. A criminal trial is not a game of catch-as-catch-

can, nor should it be turned into a forensic ambush.

[51] In this respect, we are in full agreement with the comments made by the

Constitutional Court in President of the Republic of South Africa and Others v

South African Rugby Football Union and Others 2000 (1) SA 1 (CC) at

36J-37E:

'[61] The institution of cross-examination not only constitutes a right, it

also imposes certain obligations. As a general rule it is essential, when it is

intended to suggest that a witness is not speaking the truth on a particular

point, to direct the witness's attention to the fact by questions put in cross-

examination showing that the imputation is intended to be made and to

afford the witness an opportunity, while still in the witness-box, of giving any

explanation open to the witness and of defending his or her character. If a

point in dispute is left unchallenged in cross-examination, the party

calling the witness is entitled to assume that the unchallenged witness'stestimony is accepted as correct. This rule was enunciated by the House of

Lords inBrowne v Dunn (1893) 6 R 67 (HL) and has been adopted and

consistently followed by our Courts.

[62] The rule inBrowne v Dunn is not merely one of professional

practice but 'is essential to fair play and fair dealing with witnesses'. [See

the speech of Lord Herschell inBrowne v Dunn, above] . . .

[63] The precise nature of the imputation should be made clear to the

witness so that it can be met and destroyed . . . particularly where theimputation relies upon inferences to be drawn from other evidence in the

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proceedings. It should be made clear not only that the evidence is to be

challenged but also how it is to be challenged. This is so because the witness

must be given an opportunity to deny the challenge, to call corroborative

evidence, to qualify the evidence given by the witness or others and to

explain contradictions on which reliance is to be placed.'

[39] On the present facts it seems inevitable to draw the conclusion that the only

reason why defence counsel was unaware of these crucial aspects of the accuseds

case, is because the accused invented this evidence as the trial progressed; thereby

trying to make his version more credible.

[40] I shall briefly deal with the conditions prevailing at the time when the accused

made the observation of blood in his urine for the first time. According to the accused

his hands were cuffed behind his back at all times; thus, it was impossible for him to

relieve himself and therefore, passed urine on himself and defecated in his pants. Had

that been the case, one wonders how then would it have been possible for him to

make the observation of blood in his urine as he did and who cleaned him afterwards,

as it would virtually have been impossible for him to do so himself? To this the

accuseds response was that every time the officers came to collect him, he would

only put on clean clothes. However, had the accuseds hands been cuffed on the front

as the State witnesses testified he at least would have been able (although with

some impediment) to feed and relieve himself whilst in detention. It seems highly

unlikely that this only happened during the stages when the accused was taken to

Tsumeb or Grootfontein, as there were periods when days passed without the accused

leaving the cells i.e. from the 3rd 14th November 2007. Except for specific

instructions that he had to remain in handcuffs at all times and was not allowedvisitors, there is nothing showing that the accused was treated differently from any of

the other inmates. From the OB register he was booked out by Constable Indongo on

the 5th of November and again by Constables Kefas and Mbishi on 14 December 2007

to visit the clinic; whilst there are other entries showing that he withdrew cash from

the monies kept on his behalf at the police station. The accuseds complaint about the

toilet being defective was, according to Inspector Ndhuulivali, immediately attended

to; which evidence was not disputed. It therefore does not appear from the evidence

presented to Court that besides the specific instructions mentioned the accused

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received different treatment than any of the other inmates and that he was singled out

to live under precarious circumstances whilst in detention at Oshivelo.

[41] I accordingly find the accuseds evidence on this point highly improbable and it

appears to be nothing more than an exaggeration of the conditions under which he

was detained; thereby attempting to create the impression that it was inhuman and

degrading, giving rise to promises made to him about improving his conditions if he

co-operates and confess to murdering his wife.

[42] For the conclusions reached infra, I do not deem it necessary to deal in any

detail with the last incident of an alleged assault taking place on the 22 nd of November

2007 at the Windhoek police mortuary; which will be dealt with later herein when the

admissibility of the document relating to the identification of the body is considered.

[43] Whereas the Court has rejected the accuseds evidence that he was assaulted by

Warrant Officer Gomeb and three unidentified police officers on different occasions

in Grootfontein and in the police cells at Oshivelo; on the basis that, on the facts, it

was virtually impossible to have happened, it would equally mean that these persons

could neither have coached the accused nor dictated to him what to say or which

pointing out to make to the police the sole reason for assaulting him during the

same period. It was not his evidence that any of the other members of the

investigating team dictated to him what to do or say to the magistrates and the officers

involved in the incidents of pointing out. It must therefore be accepted, and I

accordingly find, that the accused was neither assaulted nor dictated to, in the manner

he testified.

[44] Although it was never raised as a ground on which the defence contested the

admissibility of the documents in question, Ms. Mainga, appearing for the accused,

submitted that at certain stages of the pre-trial proceedings the accused had not been

warned of his right to legal representation and found support in the case ofS v Calvin

Liseli Malumo and 116 Others (unreported) Case No. CC 32/2001 delivered on

01.03.2010. It must be said that at no stage during the trial-within-a-trial did the issue

arise about the accuseds rights not being explained to him, thereby failing to

timeously alert the State (who bears the onus of proof), to lead evidence to disprove

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the allegations made by the accused. Such practice must be discouraged as it leaves

the Court in the unenviable position of not having heard evidence on the issue(s) in

dispute; which in turn, could thoroughly have been dealt with in cross-examination.

As a result of such failure the Court is now restricted to what is reflected in the

records of court proceedings and documents; the very same documents in dispute.

The State should not be put in a position where it finds itself ambushed for having

failed to cover all possible objections that could be raised. Such practice is not in the

interest of justice, as the right to a fair trial is not construed to mean that it only

applies to the accused person, as it also applies to the State. Although stated in a

different context, White, J in S v Mqayi and Others, (unreported) Case No. CC 4/1999

Ciskei High Court delivered on 10.06.1999, said:

In my opinion the cornerstone of an open and democratic society is a system of

justice which is fair to the accused, the prosecution, and the administration of justice

as a whole. It seems to me the Constitution envisages such a system of justice and

that it can never be said that the interests of justice are the interests of the accused

only.

I fully endorse these sentiments expressed by the learned judge. In the present case

the State, in my view, would have been entitled to apply to the Court to have its

witnesses recalled in order to give evidence on the explanation, or otherwise, of the

accuseds right to legal representation. Whereas there was no such application, the

Court will consider the question whether the accuseds rights to legal representation

were duly explained to him or not as it appears from the documents under

consideration.

[45] Considerable weight was given to the Courts findings in the Malumo case

(supra) where it was found that where a lay and unsophisticated accused is brought

before a magistrate (or a justice of the peace) to make a confession or admissions, that

it would be irregular to take down such statement without first having explained to the

accused person his or her right to legal representationand legal aid (See record p. 49

para [133] and p. 50 para [136]).

It is a well-established principle that the court is under a duty to adequately inform an

unrepresented accused of his or her right to legal representation; which right includes

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the entitlement to legal aid and that these rights equally apply to pre-trial proceedings.

Failure to explain these rights to an unrepresented accused would amount to an

irregularity and where a failure of justice had resulted from the irregularity (because

the accused was prejudiced and not afforded a fair trial), such failure would result in

the proceedings being vitiated (S v Shikunga and Another, 1997 NR 156 (SC)).

[46] The Court in Malumo further stated that where there is an allegation of assault

by the police, then the magistrate before whom the accused is brought for purposes of

making a confession, must put further relevant questions to the accused person in

order to establish whether the statement the accused is about to give, would be given

freely and voluntarily (See p. 34 para [81]). It seems apposite to quote the dicta relied

on from S v William Swartz and Others, (unreported) Case No. CC 108/99 delivered

on 29.10.1999 where Maritz J (as he then was) said the following:

Of course, had the accused said anything which should have caused the magistrate

to suspect that the accuseds appearance before her was not freely and voluntarily,

or that he had been unduly influenced, she would have had the duty to further inquire

into the matter, and such a duty would have extended beyond the scope of the pre-

printed form.

I fully endorse the Courts finding; however, there are material factual differences

between the present case and the Malumo matter.

[47] In the Malumo case some of the accused persons brought to the magistrate for

purposes of making a confession or to give a statement informed the magistrate that

they had been assaulted; whilst some even showed marks or scars on their bodies asproof thereof. It is against that background that the Court expressed the view that the

magistrate was under a duty to make further enquiries and to establish whether the

accused was not by the use of force brought to a confessing state of mind. In the

present case however, the accused (on his own version) confirmed that he did not

inform the magistrate of any assaults perpetrated on him. In fact, when specifically

askedwhether he had been assaulted; threatened; encouraged or influenced to make a

statement, the accused answered in the negative. In these circumstances, I am unable

to find on that basis that the magistrate had reason to suspect that the accuseds

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appearance before her was not freely and voluntarily; and that she had the duty to

further enquire into the matter.

[48] I now turn to consider the admissibility of the respective documents contested

by the defence. For the reasons given herein supra, the Court will approach the

evidence relating to each document from the basis that, when the accused gave

explanations and made statements at different stages he was not unless where

otherwise stated acting under undue influence. It was confirmed by the accused that

what is contained in the statements made to the magistrates and the incidents of

pointing out made to the police officers, respectively, correctly reflect what he

narrated to them; albeit as he claims, that it was dictated to him beforehand and as

such, it was not of his own making.

[49] I shall deal with the contested documents seriatim and evaluate the evidence

adduced in respect of each.

The Confession

[50] It is common cause that the accused was brought before magistrate Nicolaidis

on 14 November 2007 for the purpose of making a statement. The only other person

present was the official interpreter, Nicolas Ndumba. Whereas the accused is

proficient in the English language there was no need for interpretation; however, the

magistrate testified that she deemed it necessary that the interpreter remained present

and also had him sign the document in that capacity; despite not making use of his

services. In principle I do not find that irregular, as the magistrate could not

beforehand have known whether the services of an interpreter would be required

halfway through the interview and recording of the statement. The continued

presence of the official interpreter therefore should not have had any influence on the

accused or the proceedings. It is further common ground that after the recording of

the statement, the accused read through it himself and, having been satisfied, he

appended his signature thereto, as provided for.

[51] Magistrate Nicolaidis testified that the accused appeared calm and collected and

not nervous or agitated; that he was very clear in what he said and, as he was

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proficient in the official language, there was no need to prompt him. Also that he

appeared to be in his sound and sober senses and he did not look like someone acting

under undue influence; neither that his statement appeared rehearsed or staged. She

further stated that the accused made a correction on the statement by inserting the

word will where it was appropriate. The accused denied this and said he was

instructed to insert the word.

[52] It was contended on the accuseds behalf that upon his entry into the office he

informed the magistrate that he need to speak to her alone. The magistrate disputed it,

but added, that had she received such a request, she would have informed the accused

that the interpreter had to stay in attendance. She was furthermore of the view that

such a request would not have raised any suspicion with her. It was further suggested

that the interpreter received and made several calls on his mobile phone whilst the

statement was recorded; and although the magistrate said she could not recall that

ever happening, she was adamant that she would not have allowed him that. The

interpreter, Mr. Ndumba, confirmed this and denied having made or received any

phone calls. He went on to say that after the accused enquired whether the

information he was about to disclose would be treated as confidential, he and the

magistrate both switched off their mobile phones. This aspect of his evidence is

inconsistent with the evidence given by the magistrate; and as the accused himself did

not give evidence to that effect either, it seems to me that the interpreter beforehand

(during this trial) got word of him being suspected of leaking information to someone

outside and therefore invented the story about the accused asking whether they could

be trusted and them switching off their mobile phones.

[53] As stated, the mere presence of the official interpreter could not have had any

impact on the statement recorded at the time as he played no role during the

proceedings, other than being a witness. It seems that the accused wants to create the

impression that he had reason to distrust the interpreter and therefore wanted him to

leave the office; yet, he did not say why he was distrustful of the interpreter. Had he

truly entertained that idea, then it was without merit, as there were no grounds on

which a reasonable person would have come to the same conclusion. He was not part

of those who investigated the case and there was clearly no previous contact between

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them before. I accordingly find the accuseds evidence on this point fanciful and

something that came as an afterthought.

[54] It was further contended that the magistrate misdirected herself by firstly, not

informing the accused of his right to legal aid during the taking down of the

statement; and that this Court should take a broader approach and endorse the

sentiments echoed in the Malumo case (supra), where it was stated that an accused

does not have to raise the issue of legal representation before the Court will consider

it (See p.49 para [131]). Secondly, that on the question whether the accused had made

previous statements, he replied in the affirmative, saying that he did so to the police.

This, it was argued, should have alerted the magistrate; and in the light of what was

stated inRex v Gumede and Another, 1942 AD 398 at 433 and Malumo (supra), the

magistrate should have made further enquiries whether the accused was not brought to

a confessing mind by long hours of interrogation and assault.

[55] I am in respectful agreement with the sentiments expressed in the Malumo case

in that the Court has a duty to consider whether the accused was given a fair trial

withouthim first having to raise the issue of legal representation before the Court. I

am furthermore in agreement with the sentiments expressed in S v Kasanga 2006 (1)

NR 348 (HC) at 360D-E namely, that in order to decide whether an accused was

given a fair trial, it would be crucial to first determine whether the accused, before

being required to exercise or waive his or her rights, was duly informed of these rights

and thus able to take an informed decision. In S v Bruwer, 1993 NR 219 (HC) at

223C-F the Court stated that, although the concept of a fair trial must be given a wide

and liberal interpretation, I fail to see how it can be said, even against this

background that a trial will be less fair if a person who knows that it is his right to be

legally represented, resulted in a failure of justice is, as in most other instances where

a failure of justice is alleged, a question of fact (Emphasis provided)

[56] In the present case, when brought before magistrate Nicolaidis, the accused had

already appeared in the magistrates court Grootfontein (on 01 November 2007)

where, according to the record of the proceedings, his rights to legal representation

and legal aid were duly explained to him. During these proceedings the accused

indicated that he understood the explanation given to him and that he required legal

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representation and legal aid. Under cross-examination, the accused denied that any

rights were explained to him; however, he stated that the case was postponed for

further investigation and to enable him to get a lawyer. He claims to have informed

the court that he had a lawyer in Kenya with whom he wanted to establish contact

despite that not being reflected on the record. It then seems obvious that the accused

from the onset was aware of his right to legal representation; and since his first

appearance in court, he was also informed of his right to legal aid. Thus, the accused

was informed of the rights relating to legal representation and therefore in a position

to take an informed decision; which is apparent from his response to the magistrate

when asked whether he sought legal representation. On a question whether he had

made a similar statement and to whom, he replied: Yes. To the police. They asked

questions and sometimes recorded my answers in writing. I was informed of my

rights at all time. The Annexure to the statement further states: Declarant duly

warned of his right to legal representation. Declarant wishes to proceed without

legal representation. Declarant warned that confession may/will be used against him

in eventual legal proceedings. Declarant duly warned that he is not obliged to make

any statement. Declarant wishes to proceed. Accused did not dispute that these

explanations were given to him; neither that he was unaware of his right to legal aid.

There can be no doubt that when the accused, after being reminded of his rights,

elected to proceed making a statement, he was duly informed and mindful of the

consequences.

[57] The second ground of objection against the magistrates alleged failure to make

further enquiries into the reason why the accused wanted to make a statement to her is

also without merit. The accuseds report that he beforehand was questioned by the

police should in itself not have raised any suspicion in the magistrates mind,

requiring further questioning because it is common knowledge that the investigation

of a criminal case would require a certain degree of questioning or interrogation of the

suspect. There was nothing sinister in the accuseds reply prompting the magistrate to

make enquiries into. The submission that the accused was subjected to unreasonable

periods of interrogation by adding up the hours he was booked out is not

supported by the evidence. I believe that argument is founded on the accuseds

evidence that he was subjected to long periods of coaching and torturing by three

unidentified police officers evidence this Court found to be false. The objection

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risk of incriminating himself. From the manner in which the court enquired from the

accused whether he sought legal representation, it creates the impression that this

right only applies to the trial stage and not to the pre-trial proceedings. This is

misleading. Had the learned magistrate read the record of the proceedings he would

have realised that the accused had already informed the court that he wanted legal

representation, albeit on private instruction or legal aid. In these circumstances the

court, in my view, was under a duty to first explain to the accused what was expected

from him during those proceedings and the consequences thereof; secondly, to have

enquired from the accused whether he was willing to proceed without his legal

representative or not. It does not appear from the record that the accused at that stage

fully appreciated his position; neither that he was assisted in any way by the court to

comprehend that he was entitled to be legally represented during those proceedings.

What is clear is that the accused wantedlegal representation and he should have been

afforded the opportunity to decide whether his legal representative should be present

during those proceedings or not. The courts failure to determine something as crucial

as that, would amount to an irregularity, vitiating the entire s 119 proceedings.

Pointing out

[63] There are two incidents of pointing out made by the accused, the first being on

15 November to Detective Chief Inspector Kurz from Windhoek and the second, on

20 November 2007 to Detective Inspector Marais from Otjiwarongo. Neither of these

officers were involved in the investigation of the case against the accused in any other

way. Both officers completed identical pro forma documents titled Notes on the

pointing out of scene(s) and or points, except that the form used by Inspector Marais

in paragraph 5 provides that the accused be informed of his right to legal

representation and to have such person present; whilst the form used by Chief

Inspector Kurz makes no provision for that. In paragraph 3 of both forms the

accused was informed that he was in the presence of a Justice of the Peace; that he

was not compelled to point out any scene(s) or to say anything about such scene(s);

and that whatever he so points out or say would be noted down and photos of the

scene or pointing out would be taken and could be used as evidence during the

subsequent trial. According to the respective statements the accused indicated that he

understood the warning or rights explained to him and that he still wished to point out

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both occasions had come from the accused. From the accuseds perspective, there

would not have been any need for that as he had already admitted his guilt to the

police and a magistrate. By analogy, it does not imply that therefore, the accused was

forced into making any admissions against his will. It seems to me that it would not

be improper for an investigating officer to aska suspect or accused whether he or she

would be willing to make any pointing out relevant to the matter under investigation;

provided that there is no undue influence on him or her to do so and that the accused

is aware of his right to decline the request and remain silent. Both officers in this

instance explained to the accused that he was not compelled to say anything or make

any pointing out. Thus, even if the accused was asked by the investigating team

whether he was willing to make any pointing out and to which he acceded, he was

well aware that he could refuse as the consequences of his decision had also been

explained to him. However, when bearing in mind that, on the accuseds version, he

was forced not by the investigating team but by three unidentified police officers

to confess to the commission of the crime, then defence counsels submission loses

significance, and deserves no further consideration.

[69] In the result, the Court is satisfied beyond reasonable doubt that both statements

and accompanying annexures relating to two incidents of pointing out made by the

accused on 15 and 20 November 2007 respectively, are admissible evidence.

Identification of body

[70] It is common cause that the accused was taken to the Windhoek police mortuary

on the 22nd of November 2007 for purposes of identifying a body. Once again, I do

not believe that this was at the instance of the accused as Sergeant Hoa-Khaob has

testified, but rather that the idea came from the investigating team. According to the

accused he was taken into the mortuary by Chief Inspector Mbandeka where he was

shown a decomposed head, which he was unable to identify. They returned to the

office where he was told to sign the identification form which had already been filled

out. He refused and was thereafter handed over to the investigators who assaulted

him. The accused then signed the document. Sergeant Hoa-Khaob denied the

allegation of assault and Chief Inspector Mbandeka said he did not observe any

assault on the accused as the accused was in his presence at all times. Although it was

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put to Chief Inspector Mbandeka during cross-examination, that the accused was not

sure of the identity of the person, the accused, during his testimony, said that he was

unable to identify the person.

[71] According to Chief Inspector Mbandeka he also received from the police

officers the passports of the accused and his wife, from which he entered their names

onto the form before any identification was made. The reason for this, he explained,

is that the person making the identification might be shocked and unable to provide

the required information; therefore it is practice to first complete the form and to have

it signed afterwards. Now, if that explanation holds true, then such practice, in my

view, is open to abuse and criticism for more than one reason. Firstly, there is always

the possibility that no identification could be made. Therefore, why would it be

necessary to complete the form beforehand? Secondly, if the person required to make

the identification is capable of signing the document afterwards, why would he or she

not be able to provide his or her personal particulars and that of the deceased? The

required information is basic and any person would be able to furnish that information

within one minute. Should the person be in no state to provide the necessary

information, I can think of no reason why he or she should not be given time to get

control over his or her emotions first and thereafter provide the necessary information

even if it means that the form is completed afterwards. Obviously, that will depend

on the circumstances of each case, and in my view, it is wrong to simply assume

beforehand that the person would notbe able to provide the necessary information

afterwards.

[72] In this case Chief Inspector Mbandeka filled out the form, and as regards the

particulars of the accused and the deceased, obtained the information reflected

therein, from their passports and not from the person making the identification. That

obviously defeats the whole purpose of identification; as in this instance, the

identification was completed even before the body was viewed! That step was

irregular and contradicts the information borne out by the document namely, that the

body wasfirstshownto the accused and thereafter identified. By doing it the other

way round, the accused could have experienced this procedure as pressure put on him,

not allowing him to decide for himself whether he was indeed able to identify the

person. The approach adopted when completing the form on the identification of a

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body in this case, is not conducive to fair pre-trial procedure and should not be

followed. Therefore, the State should not be permitted to rely on the document styled

Identification of body in proving its case against the accused; thus, the document

cannot be received into evidence.

[73] In the result, the Court makes the following order:

1. The following statements are declared to be admissible as evidence

against the accused in the main trial:

(i) The statement containing the confession/admissions made

to magistrate Nicolaidis on 14 November 2007.

(ii) The statements and annexures relating to two incidents of

pointing out dated 15 and 20 November 2007, respectively.

2. The following statements are declared to be inadmissible as

evidence against the accused in the main trial:

(i) The section 119 proceedings, as reflected in the court

proceedings held at Grootfontein Magistrates Court on 20

November 2007.

(ii) The statement titled Identification of Body dated the 22nd

of November 2007.

______________________________

LIEBENBERG, J

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ON BEHALF OF THE ACCUSED MS. N. Mainga

Instructed by: Kishi Legal Practitioners

ON BEHALF OF THE RESPONDENT MR.N.M Wamambo

Instructed by: Office of the Prosecutor-General

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s v kenneth orina :trial within trial

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