Iuze Mukube

High Court judges Herman January and Philanda Christiaan yesterday dismissed the State’s application for leave to appeal the acquittal on appeal, of medical intern and rape accused Dennis Iipumbu Noa (30).

The state intended to appeal to the Supreme Court the not guilty verdict of Noa in November last year. The judges ruled that the grounds on which the state relied for their notice to appeal lacked merit. “We are not persuaded that the state has succeeded in showing, on a balance of probabilities, that there are prospects of success on appeal,” the judges said.

The state’s ground for appeal, firstly, is that the judges disregarded the totality of the circumstantial evidence that proved the guilt of Noa beyond a reasonable doubt.

Secondly, they misinterpreted the significance of a substance found in the complaint’s anus and incorrectly concluded the existence of a fifth porter.

Additionally, they unjustifiably accepted Noa’s version of events as ‘reasonably possibly true’ when there was evidence stating otherwise.

Lawyers Sisa Namandje, representing Noa, argued that the state had no reasonable prospects to succeed on appeal as it failed to prove beyond reasonable doubt that the complainant was subjected to a sexual act or that said act was penetrated to the anus by the penis by Noa.

The judges reiterated that the circumstantial evidence was reviewed and reiterated, and as per the acquittal judgement, found that the magistrate erred in concluding that the case had been proven beyond a reasonable doubt when certain portions of the evidence were omitted and likely not considered.

Further, that the magistrate failed to address the elements of ‘insertion of a penis into the anus’ and ‘sexual act, which constitutes an error in the judgement.

Solely asserting that Noa was the only individual with an opportunity to violate the complainant sexually is therefore legally unsustainable, especially given the lack of forensic evidence, including DNA and swab results, they added.

Moreover, the state’s claim that a fifth porter was not present, despite an official attendance register submitted as evidence, which clearly showed the presence of a fifth porter, constitutes a disregard for established and undisputed facts, as supported by documentary evidence.

Furthermore, the judges stood by the ruling that Noa’s version of events may be reasonable and possibly true, as the state failed to support and contradict his version of events with evidence.

Hence, the judges dismissed the state’s application for leave to appeal as they found that the evidence presented by the state fell significantly short of satisfying the required standard of proof, rendering it unreliable.

Noa was found guilty of rape for sexually violating a comatose 18-year-old patient while interning at the Katutura Intermediate Hospital on 11 April 2021.

Early last year, he was convicted for the charge of rape and sentenced to eight years imprisonment, which he successfully appealed against in November last year. -mukubeiuze@gmail.com