Supreme Court appeal changes 19-year jail term into freedom

AFTER doing his time in jail for almost half of a 19-year prison term, one of the men convicted of a near-murderous nighttime burglary at Swakopmund in 1999 heard yesterday that his conviction and sentence had been overturned by the Supreme Court.

Joshua David (35) started the day yesterday as a prison inmate facing the prospect of still having to serve close to nine years and five months of a jail term on charges of housebreaking, robbery with aggravating circumstances and attempted murder. By mid-day, he was eyeing a return to freedom, after his appeal against his conviction and sentence succeeded in the Supreme Court.The appeal of Salatiel Uunona (43), David’s co-accused in the case in which both men were convicted after a trial in the Walvis Bay Regional Court, against both his sentence and conviction was dismissed.The incident that landed David and Uunona in the dock and in prison took place in a house in Swakopmund’s Vineta area during the night of October 18 1999.Windhoek resident Gavin Robberts, who was on a visit to the coast, woke up during the night when he heard the sound of a window breaking. When he went to investigate, armed with a pistol and a metal torchlight, he found himself being attacked by two persons.One of them was armed with a knife. Robberts tried to fight them off as he retreated to a bedroom of the house where he was staying.In the attack on him, he was stabbed in his arm and on the side of his head. The attack was so forceful that the blade of the traditional dagger that was used by one of the attackers broke off in his neck, Acting Judge of Appeal Johan Strydom recounted in the appeal judgement delivered yesterday.Robberts did not manage to fire off a shot at the attackers, but was hitting at them with the torch.Inside the bedroom, he retreated to a corner. In the struggle with the attackers, he had by then lost the pistol.One of the intruders then picked up the gun, walked to where Robberts was, and tried to shoot him in the head. The gun did not go off. The burglar apparently did not know how to properly operate the pistol.To stop the attacker from working out how to operate the gun, Robberts again used the torch to hit him on the head. He also managed to switch off the light in the room and to set off the alarm system. That sent the burglars fleeing. They took both the pistol and the torch with them – but left behind the broken dagger and a woollen hat.On the next day, when the Police visited the hospital where Robberts was being treated, they found Uunona leaving the hospital with a bandaged head. He claimed to have been attacked by a friend when he tried to defend a lady.When the Police later heard from Robberts that he had defended himself by hitting his attackers on the head with the torchlight, Police officers went to look for Uunona.They found him and David sitting with three other people in a shack. David also had a wound on his head.On the way to a Police car, however, Uunona disappeared. He was traced a few days later. In the shack where he was found, the pistol belonging to Robberts was also found.A Police officer who had found a red woollen hat lying in the house where Roberts had been attacked, also recognised the hat, as he had seen Uunona, whom he knew, wearing such a hat on the day before the violent burglary, Judge Strydom also recounted.At the end of their trial in the Regional Court, Uunona, who was found to have been the person who tried to shoot Robberts, was sentenced to an effective 24 and a half years’ imprisonment. David was given a 16-year prison term.On appeal in the High Court, David’s sentence was increased to 19 years’ imprisonment.In the Supreme Court’s appeal judgement, Judge Strydom remarked that although the evidence against Uunona was circumstantial, ‘taken together they spun a net from which (he) could not escape’.The evidence against David was also circumstantial, Judge Strydom noted. In his instance, though, this evidence ‘raises no more than a suspicion which falls short of proof beyond reasonable doubt,’ the Judge stated.The fact that David and Uunona were found in each other’s company some time after the attack on Robberts may show that there was a closer association between them than what they wanted the court to believe, the Judge added. However, to conclude from this that David was also involved in the crimes ‘is purely speculative’, he stated.On the evidence that David also had a head injury when the Police found him, Judge Strydom noted that there was no evidence that Robberts had also hit the taller attacker – David is taller than Uunona – on the head with the torch.The court found that the evidence did not conclusively prove that David had been one of the burglars that attacked Robberts.Judge of Appeal Gerhard Maritz and Acting Judge of Appeal Simpson Mtambanengwe agreed with Judge Strydom’s decision.David was represented by Zagrys Grobler with the hearing of the appeal. State advocate Andrew Muvirimi represented the State.