S V Nikanor (CC 15-2015) 2016 NAHCMD 222 (25 July 2016)

2

REPUBLIC OF NAMIBIA

NOT REPORTABLE

HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK

JUDGMENT

Case no: CC 15/2015

In the matter between:

THE STATE

and

JESAYA NIKANOR ACCUSED

Neutral citation: S v Nikanor (CC 15-2015) [2016] NAHCMD 222 (25 July 2016)

Coram: LIEBENBERG J

Heard: 05 – 08; 11 – 14 July 2016

Delivered: 25 July 2016

Flynote: Criminal law – Murder and Rape – DNA profiling – Expert evidence – Reliability of opinion by expert discussed – DNA profile of accused found on samples taken from deceased’s genitalia and finger swab – DNA evidence links accused to both crimes.

Criminal law – Reports by accused about rape and murder of deceased prior to discovery – Self-incriminating reports link accused to offences – Reports consistent with DNA evidence implicating accused.

Criminal law – Housebreaking with intent to Rape and Rape (c/s 2(1)(a) of Act 8 of 2000) – Proved facts not establishing any ‘break in’ – No sign of forceful entry – Windows afterwards found ajar not per se proof of entry – Not the only reasonable inference to draw from facts – Housebreaking with intent to rape not proved – Offence of rape duly established – Accused convicted of rape.

Criminal law – Defeating or obstructing the course of justice – Accused asked to hand to police trousers worn on specific date – Accused handed over other trousers before handing the pair in question – Accused disputing allegations – Accused’s intentions to be inferred – Possibility not excluded that accused unintentionally identified wrong trousers.

Summary: Accused indicted on charges of murder, housebreaking with intent to rape and rape in contravention of s 2(1)(a) of Act 8 of 2000, and defeating or obstructing the course of justice or attempting to do so. He pleaded not guilty on all counts. It is common cause that accused and the deceased stayed at the same camp where they were employed. Prior to the death of the deceased being discovered, the accused had made reports about the deceased having been raped and killed to two persons who had had no contact with one another. Swabs taken from the accused and the deceased’s genitalia and left hand generated DNA profiles which link the accused with the rape and murder. In addition, blood spatter found on the accused’s shorts proved to that of the deceased. Having considered the expert evidence of the forensic analyst the court was satisfied that the reasons for expressing the opinion was sound and the opinion reliable. The scientific evidence directly connects the accused to the commission of both murder and rape. Though several windows of the deceased’s home were afterwards found open, there was no proof of any forceful entry. The court not able to infer from the proved facts that there was a break in. On the charge of defeating or obstructing the course of justice the State alleged that the accused intentionally tried to mislead the police when asked to hand over the pair of trousers he wore on a specific day. Again the court is required to determine the accused’s intentions by way of inferential reasoning. Court not convinced that possibility of accused having acted unintentionally when handing the police trousers other than what they were looking for, can be excluded. Hence, criminal intent not proved beyond reasonable doubt.

ORDER

Count 1 – Murder: Guilty.

Count 2 – Housebreaking with intent to Rape: Not guilty.

Rape, in contravention of s 2(1)(a) of the Combating of Rape Act 8 of 2000: Guilty

Count 3 – Defeating or obstructing, or attempting to defeat or obstruct the course of justice: Not guilty.

JUDGMENT

______

LIEBENBERG J:

[1] The accused, a 40 year old male, was indicted on charges of murder, housebreaking with intent to rape and rape[1] and defeating or obstructing or attempting to defeat or obstruct the course of justice. He pleaded not guilty on all counts and put the State to prove the allegations set out in the indictment.

Accused’s plea explanation

[2] Accused admitted in the plea explanation that he was employed by Etosha Safari Camp from 01 – 26 September 2008 as technician and tasked to install air conditioners on site. He admits that between 18 – 19 September 2008, and together with Marshall Horaeb, they installed an air conditioner at the deceased’s residence which they completed on 19 September 2008. He however disputes having returned to the deceased’s home during the period 20 – 27 September 2008, thus denying the allegations contained in the counts preferred against him.

The police investigation

[3] Fiona Holton (deceased), aged 52 years, was killed a few days after she had moved to Etosha Safari Camp to take up the position as manager. The last time seen alive was on the evening of Saturday, 20 September 2008, when she and some colleagues had dinner together. Before they parted ways it was agreed that the deceased had to report on duty only later the following day (Sunday) as she had a lot of unpacking to do. When she had not turned up by 5 pm on Sunday, the former manager, Juanita Holmes, her husband Brian and the Operations Manager, Alain Noirefarlise, walked over to the deceased’s residence to check on her. Upon their arrival they found the door to the deceased’s house locked, with the key still in the lock on the outside of the door. Mrs Holmes entered alone and came upon the deceased’s body lying on the floor next to the bed. Except for her nightdress pulled over her face, she was otherwise naked. She uncovered the deceased’s face and saw that she was blue in the face. She covered the deceased’s lower-body with a mat and called Alain to come and check on the deceased. He felt no pulse and realised that she had died. He observed a bruise on the forehead and a blue line on the deceased’s neck. There was also dried blood in the corner of the mouth. The police was summoned to the scene and after some preliminary examination was done, they loaded the body and returned to Outjo.

[4] The evidence of Brian Holmes regarding the circumstances under which the deceased’s body was discovered on the Sunday afternoon corroborates in material respects that of his wife Juanita, and Alain. According to Alain the deceased was a widow and had no children. Except for further mentioning that they were busy with refurbishment and enlargement of the camp and facilities at the time, during which period there lived about 100 workers on site, the evidence of these witnesses takes the matter no further.

[5] I interpose to briefly refer to evidence concerning the accused when he and his colleague, Marshall Horaeb, installed air conditioners at the house of the deceased on 18 and 19 September 2008. Mathilda Hikas had been doing domestic work for the deceased for only one week when the accused and Marshall arrived to install air conditioners at the house. On the Friday morning (19th) the accused asked Mathilda for a knife in order to sharpen his pencil and she handed him one which she took from a set, one with a black handle. According to her he never returned the knife to her. She went on to say that the accused later asked her about the deceased’s marital status and whether she had any children. Though the accused were to return the next day, Saturday the 20th, to hang pictures for the deceased, he and his co-worker did not show up. According to Mathilda and on the instruction of the deceased, the windows of the house had to remain closed at all times due to a previous incident when a snake found its way into the deceased’s room when she was still living at Okaukuejo in Etosha National Park. On Monday (22nd) she was shown a broken knife by the police which she identified as the same one she had given the accused on the Friday. She only then learned of the death of her employer.

[6] It is not disputed that two knives were found during the investigation on the side of the deceased’s house, among some nearby growing shrubs.[2] The one was an ordinary table knife, whilst the other had a black handle; the latter was found broken in two pieces. This is the knife Mathilda had given the accused and according to her, it still had traces of cement on it since the accused had used it. She denied imputations that the accused had left the knife on the kitchen table before he left and, although she did not specifically at any stage afterwards went back to check whether the knife had indeed been returned, she was adamant that it was not placed on the table as she would have seen it before she finished her duties that day. She further denied having given the accused information about the deceased’s family, the reason being that she had no such information as she had only recently started working for the deceased.

[7] Marshall Horaeb confirmed having worked with the accused on 18 – 19 September 2008 when installing air conditioners at the deceased’s residence. He had mostly worked outside the house building a stand for the outside unit, while the accused worked inside the house. He confirmed that accused asked Mathilda for a knife to sharpen his pencil; also that the deceased asked them to return on Saturday to hang her pictures. They however did not go to the deceased’s place as promised as they were given other duties at the lodge. As for him allegedly having been present when the accused left the knife and a cup on the kitchen table before leaving that Friday, he disputed it. He said that although they worked on Saturday, he did not see the accused after they finished working because the accused obtained permission to leave earlier. He said the accused did not come to work on the Sunday, and told him that he wanted to return to the place where he had been the previous day. Marshall’s evidence was not significantly challenged by the defence.

[8] After a report was made to the police of Outjo, Sergeants Gariseb and Ambutu travelled to Etosha Safari Camp on late Sunday afternoon where they attended to the crime scene. They found the body of the deceased in her house as was described by the witness Juanita Holmes. He summoned Inspector Hoaeb of the Scene of Crime Unit, Otjiwarongo, who photographed the scene the same evening. Because it became late they all returned the following day (Monday 22 September) to continue with the investigation. Having learned about the workers living on site, interviews were conducted with them, during which it was established that the accused had left the camp site the previous night to go to Anderson Gate, situated some 10 km away. Accused confirmed that he went there the previous day and said he returned with a double-cab pick-up. The latter could however not be verified. Sergeant Gariseb said the accused was further interrogated and had his room searched by Detective Inspector Katjiua (as she then was). Clothing and a pair of running shoes (‘tackies’) bearing blood spots were found in his possession; this subsequently led to his arrest.

[9] In cross-examination Sergeant Gariseb said that upon their arrival at the scene, he went around the house and found three windows open. No footprints were observed underneath any of these windows the following day. Between 7 and 8 police officers travelled to Anderson and Ongava gates to interview persons there in order to obtain information about the pick-up the accused claimed to have travelled in back to the camp.

[10] Inspector Hoaeb said he photographed the crime scene upon his return the next day and, as for the lifting of any identifiable fingerprints inside the deceased’s house, he was unable to find any. He compiled a photo and sketch plan of the crime scene which was handed into evidence. He also attended and photographed the post-mortem examination conducted by Dr Shangula at the police mortuary in Windhoek on 26 September 2008, which forms part of the photo plan (Exhibit ‘E’). Dr Shangula during the autopsy collected samples for purposes of forensic analysis which she packed and sealed in a rape kit, and handed it to Inspector Hoaeb for safe keeping. This was booked in at the Otjiwarongo Police Station and handed over to Inspector Katjiua the next day. On the night he attended the crime scene, he noticed blood spots on the bed sheet and duvet cover and took it along and locked it in the strong room of his office in Otjiwarongo. These were handed over to Inspector Katjiua who took it upon herself to collect all the exhibits.

[11] Deputy Commissioner Katjiua[3] attended the crime scene on Monday, 22 September 2008 and was briefed by Juanita Holmes as to what had happened. Having viewed the deceased’s body in the mortuary before departing for the crime scene, she scanned the deceased’s house in search of something that would match the injuries observed on the deceased’s body. She saw a candle holder (lying on the floor) and noticed that it had dry blood on it and concluded that it could possibly yield forensic evidence. It was decided to call in experts from the National Forensic Science Institute (NFSI) and on Friday, 26 September 2008 Dr Ludik and a team of scientists attended the crime scene. During their investigation blood stains showed up on the bed sheets, floor and candle holder.

[12] The accused at some point was in the reception area and when Dr Ludik sprayed his tackies with a chemical used for the screening of human blood, it reacted positively. The accused was requested to surrender his shoes to the police which was sealed in a bag. Saliva swabs were also taken from the accused and a certain Katambo. The investigation was then extended to the sleeping quarters of the accused where several pieces of clothing were seized and tested (screened) for forensic analysis. Deputy Commissioner Katjiua said that before the accused handed over these items, she by then had already explained to the accused’s his rights and that the exhibits seized could be used as evidence.