Murder Appeal Focuses on Autopsy Report

An autopsy report that lacked a medical doctor’s sworn confirmation of its contents was in the spotlight in an appeal hearing in the Supreme Court yesterday.

Because the report on the post-mortem examination that was done on a 17-year-old stabbing victim, Jacques Sammy Francis, was not confirmed under oath by the medical doctor who performed the autopsy, the cause of Francis’ death was not properly proven, lawyer Steve Rukoro argued during the hearing in the Supreme Court.

As a result of that gap in the case against Claasen Eiseb (29), who is serving a 14-year prison term after being convicted of murder in connection with the death of Francis, Eiseb’s conviction should be overturned on appeal, Rukoro argued.

Chief Justice Peter Shivute, Judge of Appeal Sylvester Mainga and Acting Judge of Appeal Petrus Damaseb reserved their judgement on Eiseb’s appeal after hearing oral arguments from Rukoro and Deputy Prosecutor General Antonia Verhoef. Eiseb pleaded not guilty to a charge of murder when he went on trial in the Otjiwarongo Regional Court in March 2008.

He was accused of having killed Francis at a shopping centre at Grootfontein on 1 January 2005. 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. At the end of his trial in December 2007 he was sentenced to 14 years’ imprisonment.

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, where the post-mortem examination report turned into the main issue in dispute between the State and the defence. In the report the doctor who performed the autopsy on Francis’ body recorded that he had died from a stab injury to his neck. 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. That omission turned out to be the main issue on which Rukoro based Eiseb’s appeal in the Supreme Court.

The post-mortem examination report was handed in as evidence during Eiseb’s trial without any objections from his defence lawyer, Verhoef pointed out. She added that during the trial the cause of Francis’ death was not an issue. The issues that were in dispute were whether Eiseb acted unlawfully and if he had an intention to kill Francis when he stabbed him, she said.

Verhoef conceded that the report on the autopsy should have been commissioned under oath, but argued that the omission by the doctor, who is no longer in Namibia, is not a reason to set aside Eiseb’s conviction.

Rukoro argued that the autopsy report did not comply with the legal requirement that it had to be accompanied by a sworn statement. If the prosecution failed to prove the cause of Francis’ death, it cannot be found that his conviction on a charge of murder was correct, Rukoro argued.

Source : The Namibian