Simon goes for legal TKO

FORMER world champion boxer Harry Simon should never have been found guilty of culpable homicide in connection with a car crash in which three Belgian tourists were killed in late 2002, Simon’s lawyer argued in the High Court in Windhoek yesterday.

If Simon had to be convicted, though, he should have been let off with nothing more than a “very lenient” sentence in the form of a fine at the most. This was part of the arguments that Simon’s lawyer, Sisa Namandje, advanced before Judge Collins Parker and Acting Judge John Manyarara during the hearing of Simon’s appeal against the culpable homicide conviction and effective jail term of two years that the one-time world champion boxer received in the Walvis Bay Regional Court on August 4 2005.Simon stood trial before Magistrate Gert Retief in connection with the role he played in the death of three Belgian visitors to Namibia in late 2002.The three – a 22-month-old baby, Ibe de Winter, her 31-year-old father, Frederick de Winter, and a 29-year-old mother of two children, Michelle de Clerck – were killed on the evening of November 21 2002 when a car driven by Simon crashed head-on into a bakkie carrying a group of Belgian tourists.The collision happened at the turnoff to Langstrand on the road between Swakopmund and Walvis Bay.Simon pleaded not guilty at the start of his trial.He did not testify in his own defence, but instead had a motor vehicle accident expert called as a witness in his defence.That witness told the court that he concluded that the collision occurred in the lane that Simon’s vehicle was correctly travelling in.EXPERTS DIFFER Magistrate Retief however rejected the evidence given by Simon’s witness, and instead accepted evidence given by another two motor vehicle collision experts who testified for the prosecution.Both those witnesses testified that their reconstructions of the collision showed that the probable point of impact was in the lane occupied by the Belgian tourists’ rented bakkie where it was waiting to turn off to Langstrand.Relying on eyewitness testimony and evidence given by these two experts, the Magistrate found that it had been proven that Simon had driven at about 160 kilometres an hour when his vehicle, at that stage on the wrong side of the road, slammed head-on into the bakkie carrying the Belgians.Simon was also injured in the crash.He was stripped of his world title when his injuries prevented him from returning to the boxing ring to defend his title.The evidence of all three expert witnesses should never have been accepted by the court, Namandje argued yesterday.He said this was because all the experts used the points where the two cars came to a standstill after the collision to calculate where the point of impact had been.They however based these calculations on points that other people had pointed out to them – and these people were not called to testify in the trial and confirm that they had given such information to the experts, Namandje argued.This means that all three experts’ testimony was inadmissible hearsay evidence, he argued.TRIAL WAS ‘CAREFREE’ Namandje attacked the trial as having been conducted in “a carefree” way.”Really, this trial was chaotic and carefree,” he claimed at one point in his arguments.In written arguments filed with the court he added: “We submit that the Magistrate, in monumental and unmatched proportions, misdirected himself and was completely at a loss as to how to approach the evidence of respective experts and as to what to do with it.The reasons for accepting the state expert’s evidence and rejecting that of the defence, are clearly unsound and not compelling at all.”Namandje also attacked the evidence given by the only eyewitness, who told the court that she saw Simon’s vehicle overtaking another vehicle only moments before his four wheel-drive Mercedes-Benz smashed into the Belgians’ bakkie.That witness’s testimony should have been approached with extreme caution because she initially made no mention of the overtaking in a first statement she made to the Police, but there was no indication that the Magistrate had done so, Namandje said.He contended that the entire conviction was tainted by the way the trial had been conducted.SIMON ‘SUFFERED’ Noting that Simon had been seriously injured in the accident, that his boxing career suffered a major setback, that his uninsured vehicle with a value of N$700 000 was damaged beyond repair and that his medical expenses after the accident cost him another N$700 000, Namandje argued that Simon should not have been sentenced to a prison term, but that “a very lenient sentence” in the form of a fine would have been appropriate.State advocate Eileen Rakow defended the evidence given by the two experts who testified for the prosecution.When that evidence was looked at together with other evidence, such as that given by the witness who said she saw Simon’s vehicle overtaking in the moments before the crash, it would have to be accepted that it had been proven that the point of impact was in the lane on the road that was correctly occupied by the Belgians’ vehicle, she argued.In addition to that, she said, simple logic should convince the court that Simon’s vehicle was travelling at an excessive speed on a stretch of road where an 80 kilometres an hour speed limit was in force.Projecting a photo of the smashed-up, destroyed front part of Simon’s Mercedes-Benz onto a screen that she set up in court, Rakow remarked: “This car did not travel at 80 kilometres an hour.”Displaying another photo that showed the mangled, crumpled remains of the tourists’ car, Rakow added: “Logic tells us a car cannot look like this if you travel at 80 kilometres an hour”.All of this, she argued, showed that Simon had not been driving in the way a reasonable, responsible man would be expected to drive, and that he had correctly been found guilty of culpable homicide for causing the Belgians’ deaths through his negligence.Rakow is set to continue addressing the court today.This was part of the arguments that Simon’s lawyer, Sisa Namandje, advanced before Judge Collins Parker and Acting Judge John Manyarara during the hearing of Simon’s appeal against the culpable homicide conviction and effective jail term of two years that the one-time world champion boxer received in the Walvis Bay Regional Court on August 4 2005.Simon stood trial before Magistrate Gert Retief in connection with the role he played in the death of three Belgian visitors to Namibia in late 2002.The three – a 22-month-old baby, Ibe de Winter, her 31-year-old father, Frederick de Winter, and a 29-year-old mother of two children, Michelle de Clerck – were killed on the evening of November 21 2002 when a car driven by Simon crashed head-on into a bakkie carrying a group of Belgian tourists.The collision happened at the turnoff to Langstrand on the road between Swakopmund and Walvis Bay. Simon pleaded not guilty at the start of his trial.He did not testify in his own defence, but instead had a motor vehicle accident expert called as a witness in his defence.That witness told the court that he concluded that the collision occurred in the lane that Simon’s vehicle was correctly travelling in.EXPERTS DIFFER Magistrate Retief however rejected the evidence given by Simon’s witness, and instead accepted evidence given by another two motor vehicle collision experts who testified for the prosecution.Both those witnesses testified that their reconstructions of the collision showed that the probable point of impact was in the lane occupied by the Belgian tourists’ rented bakkie where it was waiting to turn off to Langstrand.Relying on eyewitness testimony and evidence given by these two experts, the Magistrate found that it had been proven that Simon had driven at about 160 kilometres an hour when his vehicle, at that stage on the wrong side of the road, slammed head-on into the bakkie carrying the Belgians.Simon was also injured in the crash.He was stripped of his world title when his injuries prevented him from returning to the boxing ring to defend his title.The evidence of all three expert witnesses should never have been accepted by the court, Namandje argued yesterday.He said this was because all the experts used the points where the two cars came to a standstill after the collision to calculate where the point of impact had been.They however based these calculations on points that other people had pointed out to them – and these people were not called to testify in the trial and confirm that they had given such information to the experts, Namandje argued.This means that all three experts’ testimony was inadmissible hearsay evidence, he argued. TRIAL WAS ‘CAREFREE’ Namandje attacked the trial as having been conducted in “a carefree” way.”Really, this trial was chaotic and carefree,” he claimed at one point in his arguments.In written arguments filed with the court he added: “We submit that the Magistrate, in monumental and unmatched proportions, misdirected himself and was completely at a loss as to how to approach the evidence of respective experts and as to what to do with it.The reasons for accepting the state expert’s evidence and rejecting that of the defence, are clearly unsound and not compelling at all.”Namandje also attacked the evidence given by the only eyewitness, who told the court that she saw Simon’s vehicle overtaking another vehicle only moments before his four wheel-drive Mercedes-Benz smashed into the Belgians’ bakkie.That witness’s testimony should have been approached with extreme caution because she initially made no mention of the overtaking in a first statement she made to the Police, but there was no indication that the Magistrate had done so, Namandje said.He contended that the entire conviction was tainted by the way the trial had been conducted. SIMON ‘SUFFERED’ Noting that Simon had been seriously injured in the accident, that his boxing career suffered a major setback, that his uninsured vehicle with a value of N$700 000 was damaged beyond repair and that his medical expenses after the accident cost him another N$700 000, Namandje argued that Simon should not have been sentenced to a prison term, but that “a very lenient sentence” in the form of a fine would have been appropriate.State advocate Eileen Rakow defended the evidence given by the two experts who testified for the prosecution.When that evidence was looked at together with other evidence, such as that given by the witness who said she saw Simon’s vehicle overtaking in the moments before the crash, it would have to be accepted that it had been proven that the point of impact was in the lane on the road that was correctly occupied by the Belgians’ vehicle, she argued.In addition to that, she said, simple logic should convince the court that Simon’s vehicle was travelling at an excessive speed on a stretch of road where an 80 kilometres an hour speed limit was in force.Projecting a photo of the smashed-up, destroyed front part of Simon’s Mercedes-Benz onto a screen that she set up in court, Rakow remarked: “This car did not travel at 80 kilometres an hour.”Displaying another photo that showed the mangled, crumpled remains of the tourists’ car, Rakow added: “Logic tells us a car cannot look like this if you travel at 80 kilometres an hour”.All of this, she argued, showed that Simon had not been driving in the way a reasonable, responsible man would be expected to drive, and that he had correctly been found guilty of culpable homicide for causing the Belgians’ deaths through his negligence.Rakow is set to continue addressing the court today.