Judge Christi Liebenberg last week Wednesday dismissed all charges against a rape-accused resident of Witvlei in the Windhoek High Court.
According to the judge, the State failed to prove beyond reasonable doubt that it was Dawid Doeseb who attacked the complainant.
Doeseb was charged with two counts of rape and one count of assault with intent to do grievous bodily harm.
The State alleged that Doeseb assaulted and raped the 19-year-old complainant near the Omatatu Location at Witvlei in the Gobabis District on August 13, 2013.
The second rape charge was because he allegedly assisted an unknown person to rape the complainant.
In his judgment, the judge said that the complainant’s evidence that it was Doeseb who violated her lacks credibility and is unreliable.
According to the judge, the only incriminating evidence as regards the identification of the accused is the “single evidence of the complainant and, although the court may convict on the uncorroborated evidence of a single, competent and credible witness, it is trite law that the court must follow a cautious approach in its assessment of such evidence”. He went on to say that courts have, however, expressed a clear view that the exercise of caution must not displace the exercise of common sense and added that the evidence of a single witness must not be viewed in isolation, but must be looked at as a whole together with the rest of the evidence, including the merits, demerits and probabilities, which have presented themselves in the trial.
“The ultimate question to be answered is whether the single evidence is trustworthy and reliable,” the judge stressed.
He said that factors such as lighting, visibility and various others are likely to have affected the complainant’s ability to make a proper identification and should therefore be taken into account when assessing the reliability of the complainant’s evidence in this regard.
“It is accordingly insufficient to approach the complainant’s evidence with the view of her being an honest witness and therefore she correctly identified the accused as one of her assailants,” Judge Liebenberg emphasised.
He went on to say that bearing in mind that the area where the complainant was grabbed and raped was not lit up, considered together with her having been intoxicated at the time she was required to make the observations she testified about, are factors likely to have impacted on the complainant’s ability to make a proper identification.
He further said that according to the complainant herself, she intended retiring to bed without informing anyone about her ordeal and replied that she did not know when queried.
The judge continued that it would therefore appear if the complainant had no clear recollection of what happened to her during the assault due to intoxication, the court should be very slow in relying on evidence about her identification of the accused.
According to the judge, the contradictions in the evidence of the witnesses for the State compounded the fact that it would be impossible to conclude that their evidence corroborate that of the complainant.