Windhoek High Court Judge Christie Liebenberg Monday ordered that Steven Mulundu (22), brother of Azaan Madisia (30) accused of murdering Shannon Ndatega Wasserfall has a case to answer in the trial.
Mulundu brought a section 174 application on the murder and robbery charges. A 174 application is when an accused asks for the dismissal of charges against him/her for lack of evidence. His Legal Aid lawyer Tanya Klazen filed the application at the close of the State’s case by deputy prosecutor general Henry Muhongo.
Mulundu already pleaded guilty on a charge of defeating the course of justice for his part in disposing of the body of Wasserfall, although the State did not accept the plea.
While the judge said that there is no direct evidence that linked Mulundu to the death of Wasserfall, sight should, however, not be lost of the fact that the court has not yet ruled that a crime was committed. It is only after all the evidence has been presented that the court would be required to decide the culpability of accused one on the murder charge and the possibility of the involvement of accused two.
“What is apparent from the admissions made by accused one (Madisia) is that she subjectively believed that her actions towards the deceased was culpable, therefore, fearing her arrest and that she conveyed this to Mulundu who after initially wanting to call the authorities then agreed to help her get rid of the body,” the judge said and continued: “His subsequent actions clearly demonstrate that he subjectively believed that accused one committed a crime and he agreed to facilitate her evasion of liability.”
According to the judge, the admissions he made are considered in light of his own subjective belief that a crime was committed – irrespective of what crime it might have been. “It would appear to me that the conduct of accused two falls squarely within the definition of an accessory after the fact, the judge stated. With regards to the robbery charge, the judge said, while there is no admissions or direct evidence to the charge, the evidence that he accompanied accused one back to the flat suggest that he was present when she disposed of the deceased’s personal belongings.
Whether he intentionally and unlawfully associated himself with the disposal of the items and participated is nor here or there, the judge said. He, however, said where there is evidence that two or more accused persons acted with common purpose, a trial court should be careful in discharging one accused at the expense of another. In the event, he said, the application for a 174 discharge is dismissed.