WINDHOEK – An appeal application by the State on the acquittal of three young men from Outapi accused of murder and rape was turned down by the High Court in Windhoek.
Judge Christi Liebenberg who was the presiding officer at the trial in Oshakati on Monday found that the State had no reasonable prospects of appeal against his ruling in the Oshakati High Court early this year.
Judge Liebenberg acquitted Herman Sheepo Mbango, Simon Sheekeni Shaanika and Tylves Amunyela Shaanika on charges of murder, housebreaking with intent to rob and robbery and rape in connection with a robbery that turned into a rape and murder at Six Mabone bar at Onakaheke in the Outapi district at the end of March 2011.
They pleaded not guilty on all charges at the start of their trial in early July 2012 and did not give evidence in their own defence at the close of the State’s case.
The trial was decidedly over when the judge ruled admissions and pointings out by the accused as inadmissible at the end of a trial-within-a-trial during the original trial.
Judge Liebenberg reiterated his original finding that the accused did not make the admissions and pointings out freely and voluntarily as there was ample evidence of assault of the accused.
In the appeal the State represented by Deputy Prosecutor General Dominic Lisulo raised 33 grounds of appeal which are either stated in general terms or duplicated and merely differently formulated.
He said the points raised by the State merely amount to a “little more than a summary of the evidence adduced during the trial, accompanied by submissions or comments made in respect thereof.”
“Not a single case has been cited in support of any of the contentions made by counsel and neither was any substantive legal argument advanced,” the judge stated.
He said the applicant’s heads of argument were of little assistance when considering the grounds raised in the notice.
He said the onus was on the State to prove beyond reasonable doubt any pointing out alleged to have been made by the respondents was done without any undue influence.
This, he said, the State failed to do.
It was noted although the accused persons exaggerated the extent of the assaults, there was medical evidence and further evidence by the magistrate supporting the version of the respondents.
The State’s contention that the court wrongly assessed the evidence on both sides holds no water, the judge said, as the State never attempted to explain the material contradictions in the State’s case on crucial aspects, the judge commented.
He continued that although the court acknowledged the defence’s case was far from perfect and that the respondents also contradicted themselves, the State had the obligation to show beyond reasonable doubt that there was no undue influence on the respondents.
“Herein, in my opinion, the State dismally failed,” said the judge.
He concluded by saying that after due consideration of the grounds advanced he was unable to find any reasonable prospects of success on appeal and dismissed the application.
The respondents were represented by Titus Ipumbu.