Rape conviction overturned 14 years after alleged crime

26 July 2021 | Justice

Windhoek • [email protected]

A man who was found guilty of rape in 2018, 14 years after the alleged crime took place in early 2007 and following a nine-year trial, is a free man after a successful appeal against his conviction and four-year prison term.
In late June, acting Oshakati High Court Judge Danie Small, with agreement from Oshakati High Court acting judge David Munsu, set aside the conviction of rape and the prison sentence imposed on Robert Mutemwa in March 2018 by an Outapi magistrate AK Simpson.
Small substituted the conviction with “not guilty and discharged.”
In his reasons for the decision, published in July, Small included a scathing criticism against the almost decade long trial, riddled with unnecessary postponements and other delays. Small said in 2020 he had dealt with an appeal case in which he believed he had seen the “worst delay in finalising a reasonably simple criminal case”.
The Mutemwa case however, proved otherwise.
“I was wrong in that regard. The record of this appeal is a sad example of the noble principles indicated being ignored and a severe blemish on most of the role-players involved in the criminal trial of the appellant,” he wrote.
He pointed out that the alleged rape had taken place at the start of 2007.
Mutemwa pleaded not guilty two years later, on 5 March 2009, and was convicted in March 2018.
Small said the entire matter included a trial that lasted nine years and was finalised 11 years after the incident. “At the time of appellant’s conviction and sentence, the child born as a result of the incident was 10-years-old,” he pointed out.

Unjust
Among the missteps that added to the sluggish pace of the trial, was the fact that although a paternity DNA test had been available since November 2009, it was only seven years and three months later that the result was handed over to court.
“One can only ask why did no one in these seven years and three months properly enquired as to the result’s whereabouts,” Small wrote in his judgement.
Moreover, during the representation of the accused by Legal Aid lawyer a certain Ms Koch – one of three legal aid lawyers assigned to the accused at one point during the trial – did not appear in court once during the course of 17 postponement granted by the magistrate over a period of three years and four months.
“We believe we would have forsaken our sworn duty if we did not address the glaringly obvious disregard of relatively uncomplicated fair trial principles by the trial court, the prosecution and the defence in this matter.”
Small added that the decision to address the issue of the length the trial took in the judgement, was not “to criticize for the sake of criticism but to hopefully ensure this from happening again”.
The court ordered copies of the judgement to be delivered to all trial participants, including the magistrate’s commission, the prosecutor-general’s office and the director of legal aid.

Burden of proof
In regard to the decision to set aside Mutemwa’s conviction of rape, Small explained the onus is on the state to prove an accused’s guilt beyond reasonable doubt. The state had failed to do this, Small reasoned.
“There is reasonable doubt that one of the crucial elements for the crime was proven beyond reasonable doubt. The appellant must therefore receive the benefit of the doubt and be acquitted.”
The crucial element was lack of proof that coercion was involved in the matter.
Mutemwa had first denied having had sex with the complainant, but later, after the paternity test identified him as the child’s father, admitted to the act. This, however, did not mean the court had to dismiss his later testimony, Small noted.
“Although Mutemwa did himself no favours by falsely denying the sexual act … courts have been warned for many years that a lie does not necessarily mean that someone is guilty.”
He said changing evidence could be fatal to a defendant’s case “in instances where the state’s evidence is relatively straightforward and strong regarding all the elements of the crime”.
However, in this case, the state’s case “had significant inconsistencies in respect of the presence of coercive circumstances”.
The High Court thus found the magistrate had failed to consider this, and “therein lies the court a quo’s misdirection which led to the appellant’s conviction.”
In his summary of testimony by the complainant, Small noted that she had changed her testimony numerous times during the course of police investigation and trial.
Mutemwa meanwhile said he first lied about having sex with the complainant, because as a married man, he was afraid of his wife’s response, as well as the complainant’s boyfriend and her guardian.
His wife, he testified, did leave him after the onset of the legal proceedings.


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