WINDHOEK – Aloyis Ditshabue who applied to be discharged on a second murder charge after the State closed its case failed in his bid. Ditshabue’s defence counsel, Willem Visser had argued that the State failed to provide sufficient evidence to prove that his client committed the offence.
Judge Maphios Cheda dismissed Ditshabue’s application and ordered that he be put on his defence for the murder of his live-in girlfriend Alida Kambende on Sunday, July 10, 2011. According to Judge Cheda, the State adduced sufficient evidence to put Ditshabue on his defence. He said that in order to secure a conviction on circumstantial evidence a court should draw an inference if it is satisfied that the inference sought is consistent with all proven facts. He said a prima facie case can only arise where the State has adduced sufficient evidence, which establishes a fact or raises a presumption which if not disproved or rebutted obliges the court to put an accused on his defence. He further said that minor contradictions by the State witnesses do not necessarily affect credibility.
“The historical and educational background of witnesses should be seriously considered when evidence is placed before court. Mere omission on the part of the category of these members of society does not necessarily indicate dishonesty,” the judge said. According to Judge Cheda it is trite law that in all criminal cases the burden of proof rests with the State to prove the guilt of an accused beyond reasonable doubt and that onus does not shift, unless it is removed by legislation. He said that the State is also burdened with the onus to make out a prima facie case against an accused at the end of its case and that it’s not permissible to put an accused in the witness box in the hopes of plugging holes in its case.
“In my view, what the court should bear in mind is that the State at every stage has the onus of proving its case beyond reasonable doubt. The court should therefore always guard against the pitfall of putting the accused in the witness box where the State’s case is based on a high degree of untrustworthiness. This therefore stands to reason that in the absence of proven facts, the court should discharge the accused to avoid a situation where the accused will be placed on his defence, only to hope for a possibility of curing the defect in the State’s case,” Judge Cheda said. He further said that the operation of this legal principle is designed to ensure that an accused receives a fair trial and the court therefore has a discretion, which must be applied judiciously. He however said that the contradictions in the State witnesses’ testimonies must be considered in light of their importance and their impact on the parts of other witnesses’ evidence.
He said that the contradiction the defence relied upon mainly related to the time factor and should not be evaluated in isolation, but in totality with other evidence. He said that other evidence led so far cannot be said to be totally unreliable to an extent that it excuses the accused from explaining proven facts before court. According to Judge Cheda the proven facts are that Ditshabue was closely connected with this incident and that in the absence of an explanation by the accused it is the only reasonable inference a court, acting carefully can draw. He said the determination of a prima facie case is based on facts, on evidence before court in totality. Judge Cheda said he has no doubt that the only reasonable inference that can be drawn at this stage is that the State has made out a good case to cause Ditshabue to be placed on his defence.
By Roland Routh