REPUBLIC OF NAMIBIA HIGH COURT OF NAMIBIA MAIN DIVISION, WINDHOEK JUDGMENT Case no: CC 1/2020 In the matter between: THE STATE Versus GILBERT LOUW ACCUSED Neutral citation: State v Louw (CC 1/2020) [2021] NAHCMD 268 (01 June 2021) Coram: Heard: CLAASEN, J 15 - 19 February 2021, 22-23 February 2021, 26 February 2021, 08 - 09 April, 2021 Delivered: 1 June 2021 Flynote: Criminal Law – Onus was on State to prove beyond reasonable doubt, that the accused stabbed the deceased multiple times with a knife, with the intention to kill her and that multiple stab wounds caused death – State did not discharge that onus – Contradictory evidence amongst state witnesses – Single eye witness observed only one wound on shoulder being inflicted on deceased by the accused – Convicted of competent verdict Assault with intent to do grievous bodily harm, read with Act 4 of 2003. 2 Summary: Accused arraigned on two charges namely murder of his sister and assault with the intention to do grievous bodily harm inflicted on the boyfriend of the deceased. Accused gave formal admissions and admitted to having inflicted one stab on shoulder of deceased, which accords with evidence of the sole eye witness of the state. Defence raised novus actus interveniens on count 1. In respect of count 2 the accused denied that it happened. Held – Contradictory findings in post-mortem report as per the Doctors’ opinion. Report indicated no trauma or injuries to the abdominal area, and that area was unremarkable, yet there were indicators that a laparotomy was performed and a colostomy bag was attached. Doctor who compiled report not available to explain the discrepancies in the report. Court cannot blindly follow a flawed post-mortem report. Held – Deceased arrived in stable condition at the State Hospital and remained so the next day. It came to light that the deceased had undergone a medical procedure before she passed away. Patient file was not tendered and no other evidence availed about the accused’s medical condition, at that stage, there is nothing to gauge what treatment was given and whether the correct procedures were followed. Held furthermore – Too many discrepancies amongst the state witnesses who went to clinic about the nature and extent of injuries, including the investigating officer who had observed the body at the mortuary prior to the post mortem. It also do not accord with the evidence of the sole eye witness who testified that he observed the accused inflict only one stab wound on the shoulder of the deceased. At end of the day State’s evidence did not constitute a cogent account to satisfy the murder charge. Held – Count 1 court satisfied evidence established competent verdict of Assault with intent to do grievous bodily harm, read with Act 4 of 2003. Held – Count 2 court rejected accused’s version that the injury emanated from someone else and he is convicted as charged. 3 __________________________________________________________________ ORDER ___________________________________________________________________ Count 1: Murder Not Guilty, but Guilty of competent verdict of Assault with intent to do grievous bodily harm, read with Act 4 of 2003. Count 2: Guilty of Assault with intent to do grievous bodily harm. Exhibits 1 and 2 are to be returned to its lawful owners. JUDGEMENT __________________________________________________________________ CLAASEN J Introduction [1] The accused stands before court to answer to two charges namely: Murder, read with the provisions of the Combating of Domestic Violence Act, 4 of 2003. The allegations are that during the period of 23-24 December 2016 at Henties Bay, the accused unlawfully and with the intention to kill assaulted his sister Jennifer Louw by stabbing her multiple times with a knife causing her to die on 26 December 2016 at the Swakopmund State Hospital. In the second charge it is alleged that during the period of 23-24 December 2016 at Henties Bay, Swakopmund district, the accused did unlawfully and intentionally assault Ivan Nanub by hitting him with an unknown object on his head with the intent to cause him grievous bodily harm. [2] The accused pleaded not guilty to both charges and tendered a plea explanation and formal admissions in terms of s 115(2)(b) and s 220 of Criminal Procedure Act as amended1 (the CPA). In terms of count 1 the accused admitted to have stabbed the deceased once with a knife once on the upper back left shoulder on 24 December 2016 at Henties Bay. H

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