21 November 2012

Namibia: Pensioner Struggles for Freedom From Jail

Windhoek — A 71-year-old Tses resident is fighting to regain his freedom in the Windhoek High Court.

Jacobus Quido Apollus, who was sentenced to 15 years imprisonment, of which five years were suspended following a murder conviction, is appealing that conviction.

Apollus was found guilty on April 8, 2010 in the Keetmanshoop Regional Court of killing his own son, Patricio David Apollus on February 02, 2008 and sentenced on August 18, 2010.

Apollus pleaded not guilty at the start of his trial and submitted a detailed statement in which he formally admitted the date of the incident, the identity of the deceased, the cause of death, as well as the fact that he discharged the shot that claimed his son's life. He contended that he acted in self-defence, thus disputing the allegation that he acted unlawfully.

Advocate Percy McNally, appearing for Apollus, argued on Monday that objectively the State failed to prove that Apollus did not act in self-defence when he shot his son. McNally argued that none of the State witnesses was an eyewitness to the actual shooting and could therefore not say what truly happened.

According to McNally, none of the witnesses could dispute Apollus' version of what really happened. He further told appeal Judge Dave Smuts and Judge Harald Geier that it was never disputed that the son wanted to attack the father in his own home.

He also drew the Appeal Court's attention to the testimonies of another two witnesses, who testified they had to shield Apollus with their bodies to prevent him from being pelted with stones by his son, which is an indication that the son was very aggressive and angry and wanted to hurt his elderly father.

McNally requested the court to look at the circumstances surrounding the incident and to bear in mind that the deceased was a young man half the age of his ageing father, whom the deceased pelted with stones with the express intent to harm him and that the appellant discharged a single shot from his rifle with the intent to scare off his attacker, but unfortunately ended up killing him.

McNally further argued it would be unreasonable to "expect of the appellant to wait for the first stone to be pelted before he would be permitted to take defensive action". He also argued that Appolus in fact went out of his way to diffuse a very volatile situation, created by his deceased son.

McNally argued that the magistrate erred in finding that due to Appolus' failure to call witnesses or testify in his own defence he did not take the court into its confidence and that the magistrate committed an irregularity at the expense of Appolus despite all the evidence before him.

The court, he noted, put too much weight on the gravity of the crime and the interest of justice and society. He further argued that the magistrate went out of his way to find aggravating circumstances where none existed.

According to McNally, the chance that Appolus would re-offend is nil, as he has been and is still an upstanding member of his community, has led a blameless life and that to send him to prison serves no other purpose than to break him.

McNally also said his client has shown genuine remorse over the murder of his son. Appeal judges Smuts and Geier reserved judgment.

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