Windhoek High Court Judge Philanda Christiaan last week acquitted former police officer Ricardo Nghilifavali Nestor on charges of fraud, forgery, and using a forged instrument.

The judge, however, found that the State proved the alternative offence of theft and money-laundering. Nestor already tasted success when six charges against him were dismissed after a Section 174 application. Those charges related to N$10 million that was allegedly stolen from the bank account of Namibia Marble and Granite near Karibib, and/or Carmen Bianca Wittreich.

He was acquitted on those charges after the judge found no credible evidence against him.

She, however, put him on his defence in relation to charges involving Taiyo Namibia.

In those charges, it was alleged that he pretended to tell Taiyo Namibia that the bank account number of Walcon Construction changed from Bank Windhoek to Standard Bank, and that Taiyo should pay an amount of N$720000 for work done by Walcon into the Standard Bank account. 

Judge Christiaan found that the evidence of the State fell significantly short of satisfying the requirements when assessing the evidence. According to her, it is sufficient that there is a reasonable possibility that the evidence of an accused may be true, and the court does not even believe his story.

 In this instance, she said, the explanation of Nestor is reasonable and might be true. He claimed that he believed the bank made a mistake by depositing the money into his account, and he decided to make use of it, and pay it back later. 

He denied the allegations against him. Judge Christiaan said the onus is on the State to prove that an accused committed the offences beyond a reasonable doubt, and no obligation rests on an accused to prove the truth of any of their explanations, even if the explanation is improbable. She said it is sufficient for a court to be satisfied that the evidence of an accused may be reasonably possibly true. 

However, she said, it was not denied by the accused that he unlawfully used the money that landed in his bank account, knowing fully well that it was proceeds of unlawful activity. She thus found him guilty of theft and money-laundering. The matter will return to court on 27 September for pre-sentencing procedures, and Nestor remains in custody. He is represented by Legal Aid lawyer Albert Titus, and the State by Basson Lilungwe.– rrouth@nepc.com.na