Judge Christy Liebenberg yesterday in the Windhoek High Court found Jesaya Nicanor guilty of the rape and murder of a lodge manager outside Outjo in 2008.
According to Judge Liebenberg there is no doubt is was Nicanor who raped Fiona Ann Holton (the deceased) and therefore it has to follow he was the one who killed her.
He was however acquitted on the charges of breaking and entering and defeating the course of justice.
Nicanor, 40, was charged with the murder and rape of Holton as well as defeating or obstructing or attempting to defeat or obstruct the course of justice for washing and/or hiding a pair of beige Bermuda camouflage pants the police asked for.
The State alleges Nicanor killed Holton during the night of September 20 to 21, 2008.
DNA evidence led by the State through Marlyn Swart from the Namibian Forensic Science Institute confirmed the presence of Nicanor’s semen inside the private parts of Holton as well as a blood spot found on his Bermuda shorts.
Judge Liebenberg found the evidence adduced during the trial established that the samples were not tampered with and thus excludes the possibility of contamination during the process of analysis.
According to the judge the analysis presented findings that positively identified Nicanor as the deponent of the DNA found on and inside the private parts of the deceased.
He further said he is satisfied that Swart is an expert in the science of DNA, and that she performed her examination relating to the samples taken during the investigation of the case with the necessary care and precision, adding that opinions on exhibits subjected by her to DNA analysis “represent a well-reasoned conclusion based on certain facts …. which are either common cause or, had been established by her own evidence”. Except for Nicanor’s “unsubstantiated assertion” that the investigating team colluded to falsely implicate him, the judge said, he found no reason to doubt the evidence and that he is satisfied beyond a reasonable doubt that the expert evidence is reliable.
“In the absence of evidence to the contrary, the only reasonable conclusion to come to is that the presence of the accused’s DNA found on several samples taken from the genitalia of the deceased, directly links him to a sexual act committed with the deceased” the judge stated.
He added that the evidence directly connects Nicanor to the deceased found lying lifeless on the floor of her bedroom and establishes that there was otherwise no direct physical contact between him and Holton while she was still alive.
“The only time this could have happened was during the commission of the crimes, which clearly had an element of violence to it if regard is had to the injuries inflicted on the body of the deceased.”
The evidence implicating Nicanor is further strengthened by reports he made to two State witnesses before it even became known that Holton had been raped and murdered, the judge said, adding that it was not known before the autopsy report that the deceased was raped.
Two independent witnesses heard Nicanor talk about the rape and murder of a white woman at the lodge even before the lifeless body of Holton was discovered, which the judge said is a clear indicator that he was involved in the commissioning of the offences.
Together with the forensic evidence implicating Nicanor, the judge said, the inescapable conclusion is that the evidence “overwhelmingly” points at Nicanor as the culprit. And in the absence of evidence to the contrary, it can safely be inferred that the same person who had sexual intercourse with the deceased was responsible for her death, that person being the accused.
He said by the extent of the head injuries sustained by the deceased it can safely be inferred that a significant amount of force was required. This could only mean one thing, the judge said, and that was that Nicanor should have foreseen death was a possibility and thus he is guilty of murder with direct intent.
On the charge of breaking and entering the judge said he is not satisfied beyond a reasonable doubt the State proved its case. He said evidence was adduced that several windows were open and it is reasonably possible, albeit unlikely, that the deceased could have opened the door for someone knocking. Same with the offence of defeating the course of justice, the judge said.
According to him there are too many variables to sustain a conviction and he accordingly acquitted Nicanor of those two offences.
Nicanor was represented by Mese Tjituri on instructions from the Department of Legal Aid and the State by State Advocate Felisitas Shikerete.
The trial continues today with pre-sentencing procedures and Nicanor’s bail was cancelled. He is in custody at the Windhoek Correctional Facility’s section for trial-awaiting inmates.