Windhoek High Court Judge Naomi Shivute last week dismissed an application by a local businessman, who was convicted of murder with direct intent and sentenced to 35 years in jail leave, to appeal the conviction in the Supreme Court.
The 60-year-old Sakarias Mathias was convicted by Shivute of murder after he fired a shot that fatally wounded a 21-year-old girl at a bar in Katutura.
The judge convicted him of murdering Magdalena Fredericks when he shot her at point-blank range at BSK Bar in a fit of jealousy.
He denied this at the start of his trial and told the court the victim was accidentally shot when he fired at a certain Patrick Hawala, who had robbed him earlier of his money.
He claimed Hawala pulled the victim in front of him and used her as a human shield at the same time he fired the shot.
Judge Shivute rejected this version as false. According to the judge, in considering an application for leave to appeal, it is trite law that the test is whether another court may reasonably come to a different conclusion – and in the current matter, she sees no prospects of this happening.
She went on to say she gave a fully reasoned judgment when she convicted the applicant and she sees no reason why another court would come to a different conclusion.
With regards to the sentence, the judge said she exercised her discretion properly and judiciously, and no other court can interfere because the sentence is not shockingly inappropriate as the applicant maintained.
She further said while the court was criticised for making a finding that no robbery took place, she arrived at that finding because the witness of the alleged robbery never assisted the applicant nor did he make any report to the authorities of a robbery that took place.
She further said it is highly unlikely that the robbers would run to a place of no return, namely the bar that was a few metres away from the applicant’s shop.
Furthermore, the judge said, although when the applicant followed the robbers into the bar to retrieve his money after the disabled Hawala, who was one of the alleged robbers, he never searched him and retrieved his money. Instead, he opted to leave the bar and dispose of the firearm that he said was dropped by one of the alleged robbers when they were fleeing into the bar.
“If it is true that the firearm belonged to the robbers, why did the applicant not take it to the police as proof he was robbed?” she asked.
“Instead, the applicant disappeared for some days and never reported to the police that he was robbed. His conduct, she stressed, was not consistent with the conduct of a person who has been the victim of a serious crime.”
2020-07-28 09:09:35 | 15 days ago