A judge has freed two men accused of theft, alternatively possession of uncut diamonds and one count of conspiracy to commit an offence to bring to an end a saga that lasted over a decade.
Two former employees of Debmarine Emmanuel Shikololo (48) and Rodney Klim (48) were on trial for allegedly stealing diamonds with a combined weight of 668.26 carats valued at N$6.2 million from the diamond mining vessel Debmar Atlantic between September and November 2011.
This follows after a colleague, Dawid Jarvis, informed his supervisors that Shikololo and Klim (48) had approached him to courier uncut diamonds of the vessel.
“Although the evidence does not explicitly expose Jarvis as having fabricated evidence in order to set up and falsely incriminate the accused persons; this possibility, however, cannot be excluded,” Windhoek High Court Judge Christie Liebenberg said when he acquitted Shikololo and Klim yesterday.
The judge, however, found that the evidence produced by the State was not sufficient to prove their guilt beyond a reasonable doubt.
“Where the State’s case, as in this instance, is entirely based on the single evidence of Jarvis, it then remains to be decided whether the witness is credible and his evidence of such a nature that it constitutes proof of guilt of the accused persons beyond a reasonable doubt,” he said.
Jarvis was the catalyst that set the whole operation in motion. He first reported to his superiors about the two accused approaching him to courier uncut diamonds of the vessel and a sting operation was set in motion. However, the judge said, no documentary or electronic evidence was produced by the State to prove any of the allegations. What the evidence indeed establishes, the judge said, is that Jarvis is the only source of every piece of incriminating evidence against the accused persons and without any form of corroboration in support thereof.
This, despite pre-planned arrangements made to capture on video the highlight of the trap, namely the handover, the judge stated.
While the handover was allegedly viewed by two other persons, this evidence was not forthcoming and again leaves the evidence of Jarvis, as regards the alleged handover, unsubstantiated, the judge said and added that it goes even beyond that.
“No explanation was advanced by the State why these two witnesses could not be called to testify on crucial aspects, even in circumstances where the video recording could not be produced,” Judge Liebenberg stressed.
“Nothing prevented these persons to testify as to what they observed by way of the video link if Jarvis’s evidence on this point were to be believed.”
This unfortunate state of affairs similarly applies to Jarvis’s testimony about him having made undercover audio/video recordings of earlier meetings between him and the accused, the judge stated.
He went on to say that the State’s case entirely rests on the single evidence of Jarvis and there was not an iota of evidence adduced that corroborates any aspect of Jarvis’s evidence.
Opposed thereto, the judge said, stood the evidence of the accused persons who told the court their respective versions whilst not flinching under cross-examination. They appeared to be credible witnesses. In direct contrast was the conflicting and uncorroborated testimony of Jarvis which lacks credibility in material respects and is neither consistent with the probabilities, the judge stated.
He continued that the State’s case has been significantly weakened by the lack of supporting or real evidence that might have given some form of credibility to Jarvis’s evidence; some of which was available, or at least should have been made available as evidence.
“In my considered view, such evidence falls significantly short of being satisfactory in all material respects,” the judge said and added that having come to that conclusion, he has no choice but to find the accused persons not guilty on all counts. They were represented by legal aid lawyers Meriam Kandoni and Loretha Muvangua respectively and the State by Ian Malumani.
-rrouth@nepc.om.na