CASE NO.

: CC 04/2010

IN THE HIGH COURT OF NAMIBIA

HELD IN OSHAKATI

In the matter between:

THE STATE

and

GIDEON ANDREAS HASHIYANA

CORAM: LIEBENBERG, J.

Heard on: 23.03.2010

Delivered on: 29.03.2010

BAIL APPLICATION: JUDGMENT

LIEBENBERG, J.: [1] The accused is due to appear before this Court on the 29th
of June 2010 on charges of (i) murder; (ii) attempted murder, alternatively
contravening section 38 (1) (l) of Act 7 of 1996 – negligent discharge or handling of a
firearm; and (iii) theft (of a firearm). The charges arose from a chain of events which
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took place on 10 December 2008 at Oshakati and which led to the death of one person
and left another wounded when the accused fired several shots at the deceased,
Eunike Aluteni, in a bar. It is alleged that immediately prior to the shooting, the
accused had stolen the firearm, an AK-47 assault rifle, from a police officer on duty at
the Angolan Embassy situated nearby.

[2] The accused was arrested on the same day and has been in custody ever since.
He is currently detained at Oluno Rehabilitation Centre (a prison) for reasons that I
will return to later. Since his arrest in December 2008 the accused did not apply for
bail and when the Court enquired why this application was only brought at such late
stage, Mr. Bondai, who appeared for the accused on instruction of the Directorate:
Legal Aid, informed the Court that the accused was unsuccessful in having a legal
representative appointed through Legal Shield and opted not to approach the
(magistrate’s) court without being represented. Mr. Wamambo, appearing for the
State, opposed the application.

[3] It is common cause that the accused on the day in question was employed by the
Ministry of Safety and Security as a police officer attached to the VIP Protection Unit
at Oshakati and amongst other duties, provided protection at the Angolan Embassy
when required. He was not on official duty at the time of the incident which
happened early evening at Champ Style Bar, situated next to the embassy. During the
proceedings it emerged that the accused was having another criminal matter pending
against him and was due to appear in the magistrate’s court Oshakati the following
day (24 March 2010) on charges of robbery and malicious damage to property. These
crimes were allegedly committed earlier in May 2008 (CR. 305/05/2008) and the
accused was remanded on his own recognisance pending the Prosecutor-General’s
decision and the commencement of the trial.

[4] The accused testified in his bail application and explained in some detail the
events leading up to the shooting incident. Inasmuch as this is not the actual trial
during which the accused is required to defend himself against the allegations made
by the State, the Court will concern itself only with those issues relevant for
considering the bail application and (as far as possible) refrain from commenting on
the evidence presented for and in opposition of the present application.
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[5] On his own version the accused at the time had a love relationship with the
deceased and during an altercation the previous day, she damaged his cell phone
whereafter he wanted to assault her but fortunately his brother intervened and
convinced him otherwise. On the night of the incident whilst at Champ Style Bar he
and the deceased again quarrelled and it was then that the deceased informed him that
she had no further interest in him as she had “already killed him” by having infected
him with HIV. He was upset about what the deceased had said to him in public and
left the bar. A colleague on duty at the embassy called him and he agreed to stand in
for her whilst she quickly went to buy food. This gave him access to the firearm kept
in the duty room and he then decided to commit suicide. He did not attempt to
execute his idea but instead returned to the bar with the firearm which he had covered
with a jacket that he found inside the duty room. He and the deceased again started
quarrelling whereafter he shot her. It is common cause that she died at the spot. He
denied having had the intention to kill and it was argued on his behalf that had he not
been drunk and provoked, then none of this would have happened.

[6] In its opposition of the application the State relied on the evidence of the
investigating officer, Constable Haraeb from the Internal Investigation Unit who gave
a brief outline of his investigation. From his evidence it is clear that the investigation
had been completed and he was in the process of serving subpoenaes on the State
witnesses for the trial which will commence on the 29th of June 2010. He attended the
crime scene that evening where he found five spent cartridges which were subjected
to forensic analysis and these were found to have been fired from the firearm used by
the accused when shooting the deceased. At the scene he obtained a report from the
police officer who was on duty at the embassy that day and her version on how the
accused got hold of the firearm, does not accord with the explanation advanced by the
accused. During an autopsy performed on the deceased’s body, Constable Haraeb
observed three gunshot wounds. The accused did not report himself and was arrested
a few hours after the incident at a bar opposite the police station.

[7] Constable Haraeb said that some time after the accused’s arrest he was instructed
by Chief Inspector Kapule to arrange for the accused’s transfer to Oluno
Rehabilitation Centre as it was feared that the accused might commit suicide. Haraeb
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was unable to say on what facts was the decision taken. It was put to him during
cross-examination that whilst at Oluno the accused received counselling and had
overcome the problem of committing suicide, but he had no knowledge thereof. Of
concern to Constable Haraeb was the fact that the accused, having been born in exile
in Angola, had family across the border and could easily go there when released on
bail. According to the accused he has no family in Angola as they have all returned
from exile. Constable Haraeb’s main concern seems to be that, because the accused is
a police officer who used a State owned firearm to kill a teacher with whom he was
involved in a relationship falling within the ambit of the Combatting of Domestic
Violence Act, 2003, the deceased’s family and the public in general were disconcerted
over the killing of the deceased and therefore, it would not be in public interest to
grant the accused bail pending the trial.

[8] Mr. Bondai in his submissions relied on the remarks made by Levy AJ (as he
then was) in the unreported case number CA 67/2001 delivered on 05.12.2001 where
it was said that: “The seriousness of an offence in itself has no relevance to the
ultimate question of bail. If it did, custody pending trial would be a form of
anticipatory punishment which is not permissible. S v Acheson 1991 NR 1 at 19.”
(Emphasis provided)

[9] If counsel understands this passage to mean that the seriousness of an offence has
no relevance at all when considering bail, then he clearly misunderstood what the
learned judge meant, because in the very next sentence of the judgment the following
appears: “The seriousness is certainly a factor where conviction could lead to a heavy
penalty and escape may be an option.” In Acheson (supra) Mahomed AJ (as he then
was) listed what he termed “sub-issues” for consideration when deciding the question
whether it is more likely that the accused will stand his trial or abscond and forfeit his
bail? Of note are those issues listed under (g) – (i) which are:

“(g) how inherently serious is the offence in respect of which he is charged?

(h) how strong is the case against him and how much inducement there would
therefore be for him to avoid standing trial?
(i) how severe is the punishment likely to be if he is found guilty?”
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These considerations must clearly not be considered in isolation, but in context with
one another and based on the circumstances of the case.

[10] There can be no doubt that the charges the accused are currently facing are all
serious and usually attract severe punishment on conviction. However, sight must not
be lost of the fact that the presumption of the law is that an accused is innocent until
proven guilty in a court of law. A court would therefore ordinarily consider bail in
favour of an accused unless there are strong indicators that it is likely to prejudice the
ends of justice.

[11] It is no easy task to decide whether an accused should be granted bail or not and
since s. 61 of the Criminal Procedure Act, 1977 was amended by Act 5 of 1991, the
courts have been granted a wider discretion than previously when considering bail in
that, notwithstanding the fact that the accused has shown on a balance of probabilities
that if he is released on bail he will not abscond or interfere with State witnesses or
the police investigation, the court may still refuse bail if it is of the view that it is not
in the interest of either the public or the administration of justice that the accused be
granted bail. The court no longer needs to focus solely on what the accused might or
might not do in future, but must now also consider whether his release would
adversely affect the interest of the public or the administration of justice and may
decline him bail on that ground. In S v Du Plessis and Another, 1992 NR 74 (HC) the
court reasoned that bail may be declined in cases involving serious offences and
where a strong prima facie case has been made out against the accused; even if the
court is satisfied that there is only a reasonable possibility that the accused will
abscond or interfere with State witnesses or with the investigation.

[12] When applying the afore stated principles to the facts in casu it seems virtually
impossible for the accused to frustrate the investigation as this has been finalised and
the matter is ready for trial; secondly, it seems unlikely that the accused, when
released on bail, will interfere with any of the State witnesses.

[13] When considering the likelihood of the accused absconding, the following
factors deserve consideration: Firstly, the accused has family ties in the neighbouring
Angola and it is quite possible for someone to cross the border between these two
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countries without much difficulty. This Court on a daily basis receives review cases
of persons convicted of entering Namibia illegally from Angola at places other than
ports of entry. Can it however be said that there is a reasonable possibility that the
accused will abscond to Angola? Except for family ties, there is per se nothing that
keeps the accused in Namibia and when regard is had to the circumstances of the case,
then there seems to be a reasonable possibility that the accused might entertain such
idea and decide to abscond.
Secondly, the accused admitted that he entertained the idea of committing suicide
even before he shot the deceased; and whilst in police custody, he apparently
displayed behaviour that warranted his transfer to Oluno prison where the chances of
successfully committing suicide, are less. The reason why the accused decided in the
first place to commit suicide (because the deceased humiliated him in public by
saying that she had infected him) has not changed; whilst the accused’s situation
thereafter certainly took a turn for the worse when he killed the deceased. Accused
was silent on subsequent attempts of suicide following his arrest and it was merely
stated by his counsel that during his detention at Oluno, he received counselling and
has overcome his thoughts of bringing an end to his own life. This confirms that there
was indeed a propensity for wanting to kill himself at the time. In the absence of
independent evidence showing that it is no longer the case, I do not believe that the
accused has shown on a balance of probabilities that there is no reasonable possibility
of him again trying to commit suicide. In fact, there seems to be a strong possibility
that he might try to commit suicide again, especially when released on bail where
other ways and means would then become available to him. Thus, on this ground
alone, the Court should decline him bail.

[14] It would appear from the accused’s evidence that the State has a strong case
against him and as was submitted by his counsel, the accused’s defence is solely
based on him having been intoxicated and provoked at the time when he shot the
deceased. I do not deem it necessary to elaborate on this aspect any further.

[15] I respectfully agree with State counsel’s submission that it is in the interest of
the public when a police officer uses a firearm to kill a member of public and because
such conduct 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 the public who
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ultimately want to see justice be done. To achieve that, the justice system must not
fail them and the courts must as far as possible strike a balance between the rights and
interests 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 the administration of justice to
release the accused on bail pending his trial which is due to start in the near future.

[16] When considering how prejudicial it might be for the accused in all the
circumstances to remain in custody by being denied bail, I take into account that he
has been in custody since his arrest in December 2008 but until now, had not
approached any court on application for bail. I find the reasons advanced by the
accused for his failure to do so, unconvincing. In the light thereof, and in the absence
of any other compelling reasons why the accused should be released on bail, there is
nothing showing that the accused will suffer any (additional) prejudice whilst kept in
custody until he goes on trial within the next two months.

[17] In the result, the application for bail is declined.

______________________________
LIEBENBERG, J