[30] The law regarding the defence of temporary non-pathological incapacity was stated in S v Ngoya 2006 (2) NR 643 (HC) at para 43 as follows: defence of non-pathological incapacity cannot be had for the mere say-so of ‘The an accused person. There must be cogent evidence revealed during the evidence before a Court can find such a defence in favour of an accused person. The reason is obvious it is such an easy defence to put forward and it would be very difficult for the State to disprove, yet it remains the State’s duty to disprove it beyond reasonable doubt if the basis for it has been laid.’ [31] Furthermore, it was decided in S v Shivute 1991 NR 123 (HC) at 128 that: any case the law presumes that an accused is of sound mental health and is ‘In criminally responsible. When the issue is whether the accused was not criminally responsible because of a mental illness or defect, the onus of proof rests on the accused and as such onus must be discharged by proof on a balance of probabilities. However, when the issue is raised of the absence of criminal responsibility which is not the result of mental illness or defect and if a proper basis is laid in the evidence for the absence of criminal responsibility, then the accused must be given the benefit of the doubt on the issue of criminal responsibility if a reasonable doubt exists at the close of the case for the defence in regard to the cause of the absence of his criminal responsibility.’ (Emphasis added). [32] Concerning the evidence of State witnesses and their statements counsel for the defence made it a point of criticism that there were inconsistencies, contradictions, deficiencies or omissions in their police statements. regards the criticism omission it is known in the Courts that shortfalls in ‘As police interrogation and taking down of statements do occur: are not “Statements always complete, nor should they be expected to contain everything that a witness has said.”’ (S v Elia Avelinu and Others Case No. CC 6/2003 delivered on 22 November 2005). See also S v Hannekom, Case SA 4/2001 SC.
[30] The law regarding the defence of temporary non-pathological incapacity was stated in S v Ngoya 2006 (2) NR 643 (HC) at para 43 as follows: ‘The defence of non-pathological incapacity cannot be had for the mere say-so of an accused person. There must be cogent evidence revealed during the evidence before a Court can find such a defence in favour of an accused person. The reason is obvious it is such an easy defence to put forward and it would be very difficult for the State to disprove, yet it remains the State’s duty to disprove it beyond reasonable doubt if the basis for it has been laid.’ [31] Furthermore, it was decided in S v Shivute 1991 NR 123 (HC) at 128 that: ‘In any case the law presumes that an accused is of sound mental health and is criminally responsible. When the issue is whether the accused was not criminally responsible because of a mental illness or defect, the onus of proof rests on the accused and as such onus must be discharged by proof on a balance of probabilities. However, when the issue is raised of the absence of criminal responsibility which is not the result of mental illness or defect and if a proper basis is laid in the evidence for the absence of criminal responsibility, then the accused must be given the benefit of the doubt on the issue of criminal responsibility if a reasonable doubt exists at the close of the case for the defence in regard to the cause of the absence of his criminal responsibility.’ (Emphasis added). [32] Concerning the evidence of State witnesses and their statements counsel for the defence made it a point of criticism that there were inconsistencies, contradictions, deficiencies or omissions in their police statements. ‘As regards the criticism omission it is known in the Courts that shortfalls in police interrogation and taking down of statements do occur: “Statements are not always complete, nor should they be expected to contain everything that a witness has said.”’ (S v Elia Avelinu and Others Case No. CC 6/2003 delivered on 22 November 2005). See also S v Hannekom, Case SA 4/2001 SC.
S%20v%20Barnard%20(CC%205-2013)%20[2015]%20NAHCMD%20226%20(24%20September%202015).docx