Murder Appeal Argument On Autopsy Dismissed

AN attempt to use an unsworn autopsy report as a way of wriggling out of a murder conviction has ended in failure in the Supreme Court.

Judge of Appeal Sylvester Mainga, Chief Justice Peter Shivute, and Acting Judge of Appeal Petrus Damaseb dismissed Claasen Eiseb’s appeal against the murder conviction on which he is serving a 14-year jail term on Monday.

The three judges were not persuaded by an argument that an autopsy report that was part of the evidence in Eiseb’s trial did not comply with the legal requirement that it had to be accompanied by a sworn statement confirming its contents, and that because of that alleged shortcoming the cause of the death of 17-year-old stabbing victim Jacques Sammy Francis was not proven during the trial.

In his grounds for his appeal Eiseb himself stated, notwithstanding the alleged defectiveness of the post-mortem report, that he should have been found guilty of culpable homicide instead of murder, Appeal Judge Mainga noted in the court’s judgement, with which his two colleagues agreed.

“The sole question in dispute at (Eiseb’s) trial was whether he intended to kill the deceased. Directing the attack at such a vulnerable part of the body, appellant had the intention to kill the deceased. I am satisfied that he was correctly convicted,” Judge Mainga stated.

Eiseb stood trial in the Otjiwarongo Regional Court on a charge of murder. After being found guilty, he was sentenced to 14 years’ imprisonment in December 2007.

He was accused of having killed Francis at a shopping centre at Grootfontein on 1 January 2005. Francis died after he had been stabbed in the neck.

During his trial Eiseb claimed he had acted in self-defence when he stabbed Francis.

His defence was rejected, though, and he was convicted of murder committed without a direct intention to kill. Eiseb’s first appeal against his conviction and sentence was dismissed in the Windhoek High Court in October 2009. He then decided to continue with an appeal to the Supreme Court.

The post-mortem examination report turned into the main issue in dispute between the State and the defence when oral arguments on his appeal were heard in the Supreme Court on 15 April.

In the report the doctor who performed the autopsy on Francis’ body recorded that he had died from a stab injury to his neck.

The doctor recorded that a major blood vessel in his neck was cut when Francis was stabbed.

While the report was signed by the doctor who carried out the autopsy, a last section in which the doctor was supposed to confirm the correctness of the contents of the report under oath was not completed and signed.

Eiseb’s lawyer, Steve Rukoro, argued that the effect of the omission was that the post-mortem report could not be relied on as proof of the cause of the death of Francis.

In the appeal judgement, Judge Mainga noted that Eiseb never disputed the cause of Francis’ death during his trial, in which he was represented by a defence lawyer.

Judge Mainga also pointed out that an amendment to the Criminal Procedure Act in 2003 relaxed the strict rule of evidence that only a document of which the contents had been confirmed under oath could be used as proof in a criminal trial.

Since the amendment of the law in 2003, any document that is a medical record is admissible as evidence in a criminal trial and is regarded as proof, unless later contradicted, that the victim concerned suffered the injuries recorded in the document, Judge Mainga found.

As a result, the unsworn autopsy report could not be excluded from the evidence in Eiseb’s trial, he ruled.

Deputy Prosecutor General Antonia Verhoef represented the State with the hearing of Eiseb’s appeal.

Source : The Namibian

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