CRIMINAL LAW – MURDER – CIRCUMSTANCIAL EVIDENCE – REQUIREMENTS OF INFERENCE

The accused was indicted on a charge of murder read with the provisions of the Combating of Domestic Violence Act, Act 4 of 2003 in that on or about 23 December 2018 and at or near Omugulugonime village in the district of Ondangwa the accused did unlawfully and intentionally kill Kaarina Ngula by strangulating her. The summary of substantial facts reads as follows:

 

‘At the time of the commission of the crime the accused and Kaarina Ngula (deceased) were in a domestic relationship as they were or had been involved in an actual or perceived intimate or romantic relationship as boyfriend and girlfriend. On the 23 December 2018, the accused strangled Kaarina Ngula to death near Oshangwena Primary School at Omugulugonime village. After strangulating her to death, the accused left her body at the scene and disappeared. The body of the deceased was discovered thereafter lying near the path.’

 

The accused pleaded not guilty and gave a detailed plea explanation in terms of section 115 of the Criminal Procedure Act, 51 of 1977 (the CPA). The identity of the deceasea as Kaarina Ngula and that the deceases was accussed’s girlfriend with who he was in a domestic relationship with were recorded as admissions in terms of section 220 of the CPA.

 

SALIONGA J considered the matter and found that:

 

Both the accused and the deceased left Omunegongo cuca shops to go home on the evening of 23 December 2018. The deceased was the girlfriend of the accused. A witness who was also from the same cuca shops found the accused seated next to Kaarina Ngula who was lying on the ground by the road. The deceased was found dead the next day. The police were summoned to the scene and they followed the footprints of the person that was around the body of the deceased and who had left the scene. The accused could not be traced that day. He was only arrested on 26 December 2018. Accused allegedly admitted to police officers that the jacket found covering the deceased and the nike tekkies were his. The accused denied strangling the deceased save for stating that he was assaulted by the two men and he ran for his life. The post-mortem report shows that the deceased died of strangulation, and also an observation of fine linear abrasions on the skin of the neck which were possibly caused by nails. The court found that from the facts found proven the only inference to be drawn is that the accused murdered the deceased. Consequently, the accused is found guilty of murder.

 

Held that:

 

1. No onus rests on the accused to convince the court of the truth of any explanations given even if the explanation is improbable, unless the court is satisfied that the explanation is false beyond reasonable doubt.
2. Held further that the accused’s explanation was not only improbable but also false beyond reasonable doubt.
3. Held further that the direct and circumstantial evidence led proved beyond reasonable doubt that the accused murdered the deceased with direct intent.

 

As a result, the accused was found guilty of murder with direct intent read with the provisions of the Combating of Violence Act 4 of 2003.

 

S v Amunyela (CC 13-2020) [2022] NAHCNLD 130 (13 December 2022)