Commissioner of refugees and murder accused Likius Valombola has failed in his attempt to have the High Court dismiss all charges against him.
Judge Claudia Claasen yesterday ruled Valombola should be placed on his defence on the murder charge he denied at the start of his trial.
Valombola is accused of murdering student leader Helao Ndjaba (25) following a shooting incident on 18 May 2018 in the Ombili location of Windhoek.
His lawyer Nambili Mhata had filed the application for discharge after the state closed its case in February this year before Judge Claasen. Mhata argued that the state failed to show on a scale of probabilities that Valombola intended to shoot Ndjaba when he fired the fatal shots.
According to Mhata, almost every eyewitness called by the state had a different version riddled with contradictions on the alleged shooting.
To make matters worse, he said, the police investigation was bungled in material respects by the scene of crime officer, the investigating officer, the pathology and ballistics personnel and officials at the forensic laboratory.
In contrast, he went on, the accused’s case was consistent regarding the circumstances under which he fired shots, from his bail application to his plea explanation.
The state represented by Ethel Ndlovu argued the prosecution presented a prima facie case and that Valombola has a case to answer.
She said that at this stage of the trial, the credibility of witnesses does not play a significant role in the decision of the court on whether to place a defendant on his defence or dismiss the charges.
Valombola has pleaded not guilty to murder but admitted to firing the shot that could have possibly caused the death of former student leader Ndjaba in 2018.
According to Judge Claasen, the major issue to decide upon was the standard of proof at this stage of the proceedings. She said that the arguments of Mhata gave the impression that the standard of proof required at the stage of discharge is the same as at the end of the trial, namely, proof beyond reasonable doubt.
On the other hand, she said, the state argued that the threshold standard in applications of this nature is prima facie evidence. According to the judge, she fully disagreed with Mhata’s arguments and agreed with the state.
With regard to the credibility of the state witnesses, she said, notwithstanding the discrepancies in their testimony, there are similarities that support the state’s case and furthermore, a consideration of the evidence must also account for any competent verdict the accused may be convicted of.
In the end, she said, she is satisfied that the state established a prima facie case against Valombola and that he is placed on his defence.
The pathologist who conducted the autopsy on the slain student leader said the bullet (s) caused so much damage to his left brain that it was almost impossible for him to survive.
According to him, he observed two entry wound in the left side of the deceased’s skull, indicating that he was struck twice in close succession. During his plea – in which he conceded firing the shots but denied intent to kill – Valombola told the court that he fired two shots about 10 seconds apart when he was accosted by three people that were banging on his car door.
At the time he said he was afraid for his life and the lives of his wife and son who were in the car with him. Valombola is free on bail of N$15 000 he was granted three days after the incident. The matter will return to court on 3 June for the defence case.
-rrouth@nepc.com.na