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REPUBLIC OF NAMIBIA
HIGH COURT OF NAMIBIA NORTHERN LOCAL DIVISION, OSHAKATI
BAIL APPLICATION JUDGMENT
Case no CC 06/2013
In the matter between:
RAPHAEL NAWA ILUKENA
APPLICANT
and
THE STATE
RESPONDENT
Neutral citation: Ilukena v The State (CC 06/2014) NAHCND 1 (16 JANUARY 2015)
Coram : January
Heard:
05/12/2014, 16, 17, 18/12/2014
Delivered:
16/01/2015
Flynote:
Criminal procedure — Bail—Trial at advanced stage — Accused HIV
positive — Bail refused.
Summary:
Applicant in this matter was a police officer. He is HIV-positive He was
arrested on counts of kidnapping and murder. Later a count of assault by threat read
with the provisions of the combating of domestic violence act was added. His wife had a
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relationship with the deceased. The applicant searched for the deceased. When he
found the deceased he hand cuffed him and took him to his home. At his house he also
feet cuffed the deceased. He tortured the deceased with the wife witnessing the
incident. The deceased eventually died. Bail was refused.
ORDER
1.
Bail is refused.
2.
Applicant has to remain in custody.
BAIL APPLICATION JUDGMENT
JANUARY, J
[1]
The applicant is a 45 year old Namibian male who is standing trial on charges of
(i) Murder, (ii) Kidnapping and (iii) Assault by threat read with the provisions of the
Combating of Domestic Violence Act, Act 4 of 2003. He was a police officer in the
Criminal Investigation Unit at Katima Mulilo and was arrested on 20/07/2012 on the
abovementioned charges.
[2]
The trial on the merits commenced before Tommasi J. She opted to recuse
herself from this bail application after she commented at some stage during the trial that
bail should be considered in the matter. Mr. Shileka representing the State then
submitted that there is a possibility of a perception of her being biased as far as the
granting of bail is concerned. I volunteered then to hear this application.
[3]
The summary of substantial facts on terms of section 144(3) (a) of the Criminal
Procedure Act, Act 51 of 1977 (CPA) reads as follows:
“At the time of the commission of the offence accused was a
serving member of the Namibian Police. Suspecting that
deceased was having a love affair with his wife, accused made a
concerted effort to find deceased. On 20 July 2012 after receiving
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information accused proceeded to a house where deceased was
renting at New Cowboy, Katima Mulilo. Accused handcuffed
deceased and took him against his will to his house where he
detained him. While at accused’s house the accused handcuffed
deceased on his ankles undressed him, leaving his private parts
exposed and proceeded to torture him in his (accused) wife’s
presence, insulting him, assaulting him with a sjambok all over the
body, placing a gun into his mouth and forcing him to drink his
urine for a period of over four hours. While torturing the deceased
accused was consuming alcohol and at some point accused told
the complainant in count three that she must watch her boyfriend
die and that he will then kill her. Meanwhile he summoned
neighbours to come and have a look at deceased while torturing
him .In the end complainant on count three managed to phone the
police who came and ferried deceased to hospital where he was
certified dead upon arrival.”
Complainant three (the wife) testified that when she wanted to give the deceased water,
she was threatened also to be killed apart from threatening her that she must witness
the boyfriend die and then he will kill her.
[4]
After his arrest, the wife allegedly received sms’s and calls from a cellphone from
the applicant. One of the sms’s again was in the nature of a threat, according to her,
“…like that she is a bouncy woman wanting to sedate another man to death. She can be
free for now.”
In my view this SMS is open to many interpretations one of which can be construed as a
threat especially in view of the previous threats that she will be killed.
[5]
The wife reported cases of Assault with intent to do grievous bodily harm, assault
by threat and crimen injuria with CR 124/04/2010, CR 49/01/2011 and CR 120/05/2012
respectively. Copies of the dockets were handed up as exhibits 1, 2, and 3 in this
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application. It is indicated thereon that CR 124/04/2010 was nolle prosequied, CR
49/01/2011 was withdrawn and on CR 120/05/2012 the applicant paid admission of guilt
of N$300 on each charge after a decision by the Prosecutor-General (PG) that the
applicant was to be arraigned on four charges of common assault read with section
21(1) of the Combatting of Domestic Violence Act, Act 4 of 2003. The charges are in
relation to the wife and three children. The receipt of payment was handed up as part of
exhibit 2 and the decision of the PG as exhibit 4.
[6]
The trial in the case is in advanced stage. The State only has to lead one witness
out of a list of 26 as indicated on the list of witnesses. This bail application is brought as
per a notice dated 29 July 2014 by Mr. Nsundano, representing the applicant, on the
following new facts:
“1. Investigations in the matter are complete.
2. Applicant herein is sick, as he was diagnosed with HIV-Aids: as such
his condition has since worsened, making him unfit to be further detained
in custody.
3. Applicant has since now been indicted for murder and kidnapping only,
as opposed to the charge in the lower court which was read with the
provisions of the Domestic Violence Act, upon which the court attached
more weight in refusing the application in the first bail application.”
[7]
This is the second bail application. Previously a bail application was entertained
in the magistrate court, Katima Mulilo on 29 August 2012 with a refusal of bail on
24/09/2012.
[8]
The State represented by Mr. Shileka, on 01 August opposed the bail application
by notice and in the meantime applied for an amendment to the indictment to add a
charge of Assault by threat read with the provisions of the Combatting of Domestic
Violence Act 4 of 2003. He informed the court at the commencement of these
proceedings that the grounds of opposition are:
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I.
The charges against the accused are serious and the likelihood of a heavy
sentence of direct imprisonment may induce him to abscond if granted bail
.
II.
The fact that the applicant might commit further offences since when he
committed these crimes, there were already pending cases of similar nature
especially read with the provisions of the Combating of Domestic Violence
Act.
III.
The combination of the abovementioned two grounds amount to the third
ground that it will not be in the interest of the administration of justice or
society in terms of section 61 of the CPA.
[9]
Mr. Nsundano in his address on commencement in this court confirmed that the
offenses are indeed serious. He stated that with only one State witness left, there is not
sufficient evidence upon which a reasonable court will convict on the charges. Mr.
Nsundano further stated that it is not part of his instructions from the applicant that he
indeed committed further crimes. Applicant is not aware of further crimes that are
pending. Mr.Nsundano repeated the grounds in his written notice of the bail application
emphasizing the facts that the applicant is HIV positive, the fact that he does not receive
proper medical care in relation to administration of medicine care inside holding cells
and that the State is on the verge of calling its last witness.
He stated that
investigations are completed which is different than when bail was refused in the lower
court. Accordingly the applicant cannot and will not interfere with witnesses. The
applicant does not want to stay with the complainant in count three.
[10]
The applicant testified in substantiation of his application. He stated that he is 45
years old. He was born and is residing in Namibia. He was never residing in another
country. He has a sister in Namibia who is a psychiatric patient and for whom he needs
to take care of. The applicant acknowledged his marriage to complainant in count three.
He has currently 13 children that he needs to support. Four of those children are born
from his present wife and live with her in his house. The rest of the children were moved
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out by his wife. He has a house in Chotto Compound, Katima Mulilo and a village with
houses plus minus 70 km from Katima Mulilo at a place next to Salambala.
[11]
The applicant confirmed that he was a police officer with the rank of detective
sergeant class one. He joined the Police Force in 1993. He was initially only indicted
with Murder and Kidnapping and only, when he decided to apply for bail recently,
indicted with Assault by threat read with the provisions of the Combating of Domestic
Violence Act. He pleads not guilty to all counts. He testified that he will not commit
further crimes because he went for counseling. According to him, he and his wife are at
peace and his wife used to visit him at Ngoma police station bringing food to him. He is
presently at Oshakati holding cells.
[12]
The wife, complainant in count three, testified in these proceedings. She stated
that she was an eye witness to the torturing of the deceased eventually ending in his
death. She witnessed the hand and feet cuffing, the undressing, the placing of the gun
into the mouth of the deceased, the hitting with the sjambok and drinking of urine by the
deceased. She further testified about the threat by the applicant that she must witness
the death of the deceased and that thereafter it would have been her turn to die. She
also testified about phone calls from the applicant and sms’s from him after his arrest.
She denied of being on good terms with the applicant.
[13]
She admitted under cross-examination that she had a relationship with the
deceased. She also admitted that she is currently in another relationship with another
man. The complainant stated that she is still afraid of the appellant due to the fact that
he assaulted her in the past, threatened her and mostly feels threatened because of
what she witnessed at the time of the incident.
[14]
The investigating officer also testified in these proceedings. She confirmed that
applicant was a police officer. She stated that there are still some pending cases
against the applicant. The applicant was co-operative during the investigation.
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[15]
I am mindful that this is not the trial of the accused and I will accordingly only
consider facts that are relevant to decide whether bail should be granted or not.
Accordingly I will refrain, as far as possible, from commenting on the value of evidence
in this application.
[16]
It is a notorious fact that many trial awaiting and sentenced inmates suffer from
illnesses. The fundamental human rights of all people are protected by our Namibian
Constitution. Likewise all inmates are entitled to these rights including proper medical
care. It is by this time notorious that the police and prison authorities strive to take care
of medical needs of their inmates. Their efforts are however hampered by lack of the
proper facilities. It is an issue to be addressed but only after adherence to the Audi
Alterem principle. I am therefor not expressing any opinion on this issue.
[17]
The first ground of this application is that there is not sufficient evidence on which
a reasonable court could convict the accused. This is a fact to be considered in the
main trial and I am not considering it in this application. This ground in my opinion is, if it
has merit, could lead to the early release of the applicant.
[18]
The second ground of this application is the lack of proper medical attention due
to him being HIV-positive. The applicant has a prescription for specific types of food and
to bath in warm water because he needs to administer medication through his anus.
The police holding cells do not have these facilities. No evidence was placed before me
why the prescription was and is not complied with. It requires speculation to determine if
firstly, it was brought to the attention of the relevant authorities and secondly, if it is
possible to comply with. It will therefore be improper to make an order in that regard. In
my view this is not an unsurmountable problem and could be addressed by the police.
[19]
I agree that at this stage of the main trail that the possibility of applicant
interfering with witnesses is slim if not non-existent. This is however not the only
consideration relevant in this matter. I am of the view that the State has a strong case
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based on the fact that there is an eye witness to the alleged torturing and eventual
murder. This I say without commenting on the value of this evidence.
[20]
I agree with and echo the decision in S v Acheson 1991 NR 1 at p5;
(1)
“Was it more likely that the accused would stand his trial or was it more
likely he would abscond and forfeit his bail? The determination of
that issue involved a consideration of sub-issues such as;
(a)
how deep his emotional, occupational, and family roots
within the country where he was to stand trial were;
(b)
what his assets in that country were;
(c)
what means he had to flee from the country;
(d)
how much he could afford the forfeiture of the bail money;
(e)
what travel documents he had to enable him to leave the
country;
(f)
that arrangements existed or might later exist to extradite
him if he fled to another country;
(g)
how inherently serious was the offence in respect of which
he had been charged;
(h)
how strong the case against him was and how much
inducement there would be for him to avoid standing trial;
(i)
how severe the punishment was likely to be if he were
found guilty; and
(j)
how stringent the conditions of his bail were and how
difficult it would be for him to evade effective policing of his
movements.
(2)
Was there a reasonable likelihood that, if the accused were released on bail, he
would tamper with witnesses or interfere with the relevant evidence or cause
such evidence to be suppressed or distorted? The determination of this issue
involved an examination of other factors, such as
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(a)
whether or not the accused was aware of the identity of
such witnesses or of the nature of such evidence;
(b)
whether or not the witnesses concerned had already made
their statements and had committed themselves to giving
evidence or whether it was still the subject-matter of
continuing investigations;
(c)
what the accused's relationship with such witnesses was
and whether or not it was likely that they might be
influenced or intimidated by him; and
(d)
whether or not any condition preventing communication
between such witnesses and the accused could
effectively be policed.
(3)
How prejudicial might it be for the accused in all the circumstances to be kept in
custody by being denied bail? This involved an examination of issues such as
(a)
the duration for which the accused had already
been incarcerated;
(b)
the duration for which he would have to be in
custody before his trial was completed;
(c)
the cause of any delay in the completion of his
trial and whether or not the accused was wholly
or partially to be blamed for such delay;
(d)
the extent to which the accused needed to keep
working in
order to meet his financial
obligations;
(e)
the extent to which he might be prejudiced in
engaging legal assistance for his defence and in
effectively preparing his defence if he were to
remain in custody; and
(f)
the health of the accused.” (my emphasis)
[21] It is notorious that domestic violence is rampant in Namibia and in the world. The
international community calls for its abolition.
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[22] Likewise I agree with and endorse the dictum in S v Gideon Andreas Hashiyana,
Unreported, CC 04/2010 delivered on 29/03/2010 as follows:
“I respectfully agree with the State counsel’s submission that it is
in the interest of the public when an officer uses a firearm to kill a
member of public and because such condition is diametrically
opposed to what a police officer is supposed to do i.e. to protect
society, these cases do receive a lot of attention from public whom
ultimately want to see justice to be done. To achieve that, justice
system must not fail them and courts must as far as possible
strike a balance between the rights of the accused on the one
hand and public interest and the administration of justice on the
other. In my view, there is sufficient reason to come to the
conclusion that it would not be in the interest of the public or
administration of justice to release accused on bail pending his
trial which is due to start in the near future”.
[23]
This case is in the verge of being finalized. There are options, as stated
before, to shorten proceedings. In my view it is not in the interest of the
administration of justice or public opinion to grant bail. This factor has not
changed, in my view, from when it was existent at the initial bail application
[24]
Accordingly bail is refused and the order is granted accordingly.
[25]
Bail is refused.
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________________
HC JANUARY
JUDGE
APPEARANCES
The Appellant:
Mr Nsundano
Of Legal Aid High court
Respondent :
Adv Shileka
Prosecutor General Office