High Court overturns stabbing verdict

THE High Court has overturned the culpable homicide conviction and three-year prison term that a young Windhoek resident received two years ago as a result of an incident in which he had stabbed a childhood friend in the head with a knife.

The then 18-year-old Nelson Haileka was sent to jail with an effective sentence of three years’ imprisonment on August 5 2004, when he was sentenced to a five-year jail term, of which two years were conditionally suspended. That was after he had been found guilty in the Windhoek Regional Court on a charge of culpable homicide.With more than two years having passed in the meantime, the High Court allowed Haileka’s appeal against his conviction and sentence last Thursday.In the record of the appeal that Haileka lodged in the High Court, there is no indication that he had been free on bail pending the finalisation of the appeal.Haileka was accused of having killed 19-year-old Justino Canhoha by stabbing him with a knife on the left side of his head on December 7 2002.That incident took place at a bar in Windhoek.Canhoha lived for close to three weeks after the stabbing.He went to get medical help only some two weeks after the stabbing, and it was then discovered that he had an infection in his head.This infection turned into an abscess in his brain, which finally ended his life on December 26 2002.At his trial, Haileka claimed that he had acted in self-defence.He told the court that Canhoha, who he said had been drinking brandy at the bar that evening, turned aggressive towards him and threatened him with a knife.While trying to defend himself, he stabbed Canhoha in the head, Haileka claimed.The Regional Court Magistrate who presided at Haileka’s trial found that Haileka had exceeded the bounds of self-defence and should have foreseen the possibility that he could kill Canhoha, and that he as a result had negligently caused Canhoha’s death.In the High Court’s judgement on the appeal, Judge Louis Muller disagreed with the Regional Court’s opinion on that issue.The only witness who testified for the prosecution during the trial told the court that he saw Canhoha, who was the aggressor in an altercation with Haileka, attacking Haileka, but he did not see that Canhoha had a knife, Judge Muller noted.However, having looked at Haileka’s testimony, it seemed to him that it was possible that Canhoha might have had a knife as claimed by Haileka, the Judge stated.He remarked that although he was not absolutely convinced by Haileka’s explanation of the altercation with Canhoha, he could not conclude that Haileka had lied on this score.If there was a reasonable possibility that Haileka’s evidence might be true, he had to be acquitted, Judge Muller stated.Another basic link in the prosecution’s case had also not been properly assessed at the trial, Judge Muller further decided.That link is based on the question whether Canhoha’s death was actually caused by the stab wound that he had sustained 19 days before he passed away.Haileka’s defence counsel, Louis du Pisani, argued that there was a possibility that the fatal infection developed as a result of the wound not having been kept clean, and that this was a new, intervening act that broke the link between the stabbing and Canhoha’s death, with the result that Haileka could not be held responsible for the death.Judge Muller did not make a finding on that point, but stated that in his opinion there was a lack of medical evidence before the Magistrate on which it could be evaluated whether a new, intervening act had severed the direct link between the stabbing and the death.Evidence on important facts such as the seriousness of the stab wound that Haileka inflicted, whether it could lead to an infection and later an abscess developing, and whether the infection was caused by Canhoha’s failure to keep the wound clean and receive medical treatment, was not before the trial court, Judge Muller noted.Du Pisani represented Haileka both at the trial and during the appeal.State advocate Andrew Muvirimi represented the prosecution at the appeal hearing on November 14.That was after he had been found guilty in the Windhoek Regional Court on a charge of culpable homicide.With more than two years having passed in the meantime, the High Court allowed Haileka’s appeal against his conviction and sentence last Thursday.In the record of the appeal that Haileka lodged in the High Court, there is no indication that he had been free on bail pending the finalisation of the appeal.Haileka was accused of having killed 19-year-old Justino Canhoha by stabbing him with a knife on the left side of his head on December 7 2002.That incident took place at a bar in Windhoek.Canhoha lived for close to three weeks after the stabbing.He went to get medical help only some two weeks after the stabbing, and it was then discovered that he had an infection in his head.This infection turned into an abscess in his brain, which finally ended his life on December 26 2002.At his trial, Haileka claimed that he had acted in self-defence.He told the court that Canhoha, who he said had been drinking brandy at the bar that evening, turned aggressive towards him and threatened him with a knife.While trying to defend himself, he stabbed Canhoha in the head, Haileka claimed.The Regional Court Magistrate who presided at Haileka’s trial found that Haileka had exceeded the bounds of self-defence and should have foreseen the possibility that he could kill Canhoha, and that he as a result had negligently caused Canhoha’s death.In the High Court’s judgement on the appeal, Judge Louis Muller disagreed with the Regional Court’s opinion on that issue.The only witness who testified for the prosecution during the trial told the court that he saw Canhoha, who was the aggressor in an altercation with Haileka, attacking Haileka, but he did not see that Canhoha had a knife, Judge Muller noted.However, having looked at Haileka’s testimony, it seemed to him that it was possible that Canhoha might have had a knife as claimed by Haileka, the Judge stated.He remarked that although he was not absolutely convinced by Haileka’s explanation of the altercation with Canhoha, he could not conclude that Haileka had lied on this score.If there was a reasonable possibility that Haileka’s evidence might be true, he had to be acquitted, Judge Muller stated.Another basic link in the prosecution’s case had also not been properly assessed at the trial, Judge Muller further decided.That link is based on the question whether Canhoha’s death was actually caused by the stab wound that he had sustained 19 days before he passed away.Haileka’s defence counsel, Louis du Pisani, argued that there was a possibility that the fatal infection developed as a result of the wound not having been kept clean, and that this was a new, intervening act that broke the link between the stabbing and Canhoha’s death, with the result that Haileka could not be held responsible for the death.Judge Muller did not make a finding on that point, but stated that in his opinion there was a lack of medical evidence before the Magistrate on which it could be evaluated whether a new, intervening act had severed the direct link between the stabbing and the death.Evidence on important facts such as the seriousness of the stab wound that Haileka inflicted, whether it could lead to an infection and later an abscess developing, and whether the infection was caused by Canhoha’s failure to keep the wound clean and receive medical treatment, was not before the trial court, Judge Muller noted.Du Pisani represented Haileka both at the trial and during the appeal.State advocate Andrew Muvirimi represented the prosecution at the appeal hearing on November 14.