A man convicted of a shooting at an Independence Day celebration that claimed the life of a three-year-old boy lost his legal bid to regain his freedom.
Three judges of the Supreme Court dismissed an appeal by David Hangue against a conviction of murder and attempted murder.
Judge of Appeal Gerhard Maritz, who wrote the unanimous judgment in which Chief Justice Peter Shivute and Acting Justice Fred Chomba upheld the trial court’s ruling said in their collective view the trial court was correct when it found Hangue was liable for the death of three-year old Diego Huiseb and seriously wounding his mother Lydia Huises.
Hangue was convicted of murder, attempted murder, the handling of a firearm while under the influence of liquor and discharge of a firearm in a public place at the end of his trial in the Windhoek High Court.
He was sentenced to 19 years in prison over the incident that happened at the J Stephanus Stadium in Keetmanshoop on Independence Day in 1999.
Judge Maritz described the day as one which dawned with the promise of celebrations for Namibians all over the country, but ended in an tragedy for the Katzao/Huises family. According to evidence produced during the trial the boy’s father Mr Katzao and his life partner Lydia drove to the stadium with the deceased to partake in the celebrations.
On their arrival Diego disembarked from the vehicle first and ran to the fence to watch a football game that was going on. However, as Lydia rushed after him, a gunshot went off in their vicinity. As she returned to the car with Diego a second shot went off, which struck Diego in the back of his head and exited just above his left eye.
Lydia, who at that stage was comforting Diego with kisses on his face, was struck by the exiting projectile on the forehead before it lodged behind her right ear.
Hangue pleaded not guilty to all charges in the main trial and put up a defence of non-liability, because he was “too drunk to know what happened that night, that he was completely blank as to what happened and was so under the influence that he did not know what happened”.
According to Judge Maritz, the High Court had to determine whether or not there was a reasonable possibility that Hangue was so intoxicated that when he fired the fatal shot he lacked the required criminal capacity or culpability to commit the crimes.
According to Judge Maritz, the trial judge addressed these issues in an extensive and well-reasoned judgement.
He said in his view there is no basis to interfere with the credibile findings of the trial judge: “On the contrary its conclusion is supported by an analysis of the evidence”.
He went on to say: “The appellant did not lay a factual basis upon which the court could come to the conclusion that there is a reasonable possibility that when he discharged the fatal shot the appellant acted in a state of non-pathological automatism or criminal incapacity and was not able to form the legal intention to commit the crimes of murder and attempted murder on which he was convicted.”