A former police officer accused of fraud involving N$10 million, was yesterday acquitted on six of the nine charges he faced by Windhoek High Court Acting Judge Phillanda Christiaan.
The judge found Ricardo Nghilifavali Nestor not guilty after his Legal Aid lawyer Albert Titus lodged a section 174 application for his discharge after the state closed its case.
The judge, however, put him on his defence on the remaining three charges involving Tayo Namibia. In those charges, it is alleged that Nestor pretended to Taiyo Namibia that the bank account of Walcon Construction changed from Bank Windhoek to Standard Bank and that Taiyo Namibia should pay an amount of N$720 000 for work done by Walcon Construction into the Standard Bank account.
The charges in relation to Nestor allegedly swindling Namibia Marble and Granite (NAMAGRA) near Karibib and/or Carmen Bianca Wittreich of an amount of N$10 million were found to be unsubstantiated as well as a further count that he defrauded Spot-On Discount Liquor and SR van Wyk or Meransha Properties.
Judge Christian found that the state did not prove the allegations against Nestor beyond a reasonable doubt.
According to her, the state regrettably failed to pass the threshold of prima facie evidence which left her with no choice, but to acquit Nestor.
The judge further said there were several reasonable inferences the court could not draw from the facts that were presented.
“The most obvious one is that Carmen Bianca Weitrich and Lizane van Wyk committed the acts, as there is no evidence from the state as to how their accounts and computers were accessed other than by themselves,” said Christian.
The judge further said the state’s case was primarily based on circumstantial evidence while there is no direct evidence linking Nestor to the crimes committed.
“There have been no facts presented proving the accused accessed the computers, the login credentials, or the internet banking profiles of either complainant,” the judge said.
She further said there was no evidence that Nestor received or benefitted from the funds that were transferred from these accounts.
Also, the judge remarked, that the state failed to establish a link between the accused and the transactions reflected on the accused bank account and NAMAGRA as ‘Trader’ and ‘Altcoin Trader’. According to Judge Christiaan, the state’s case failed at this juncture already.
“It is my respectful view that the inferences the state seeks the court to draw amounts to speculation or conjecture, as there are no positive proved facts from which the inference can be made,” she stated.
She also had some choice words for the police investigators, criticising the “lackadaisical” way the case was investigated and approached.
The matter was postponed to 28 November for a status hearing on dates for the trial of the remainder of the charges and Nestor was remanded in police custody.
The state is represented by Basson Lilungwe. – rrouth@nepc.com.na