Three statements made by a deceased with regards to an assault days before her ultimate demise at the hands of her boyfriend, was ruled inadmissible by a judge in the Oshakati High Court.
Acting Judge Eduard Kesslau declared that the statements could not be used in the trial of Josef Johannes, who was arraigned for the murder of his then girlfriend. who was not identified in the judgement.
Kesslau said he agrees with the submissions of the defence counsel, Wilmarie Horn, that the deceased was an interested party at the time she made the statements, and that the accused has a right to cross-examine her, which is now impossible.
The statements revolve around an incident that happened on 4 May 2018 involving the accused and the now deceased. These statements were taken down by a member of the Gender-Based Violence Unit regarding an assault perpetrated on her by the accused.
On 19 May 2018, the deceased passed away as a result of the assault. The State wanted to introduce the statements as evidence, but Horn opposed. She submitted that the Namibian Constitution rules supreme, and that Article 12 guarantees a fair trial, especially that an accused has the right to cross-examine a witness who was called against him.
Furthermore, she said, this right cannot be limited in terms of Article 22 of the constitution, and if so, will severely prejudice the accused as the deceased cannot be cross-examined on her statements. It was also argued that the statements were inadmissible as she was an interested party in that she anticipated that the police will investigate the case made by her, and the statements were made to establish facts, with some of those facts being disputed by the accused.
Kesslau further stated that the deceased, at the time of making the statements, was a complainant, who requested assistance from the police to investigate the matter and deliver justice in her case. In this case, he said, the deceased was the only one with a direct interest in the successful prosecution of the accused.
“Taking into account that I am in agreement with the submissions by the defence that the deceased was an interested party in the matter at the time she made the statements, they do not fall under any of the common law exceptions to the hearsay rule,” Kesslau found.
As a result, he said, the statements cannot be introduced as evidence and must be ruled inadmissible.
He further said that he is in agreement with the submissions of the defence that the constitution is the supreme law of the land, which guarantees the right to cross-examining evidence brought against him. Relying on the statements is thus tantamount to depriving the accused of this entrenched right.
In these particular circumstances, the acting judge said, it would severely prejudice the accused if evidence is allowed without giving him or his counsel the opportunity to test such versions during cross-examination, and will amount to a gross irregularity in proceedings.