Windhoek-The State-funded lawyer of an Otjiwarongo resident accused of murder, rape, robbery and defeating the course of justice yesterday asked Judge Christi Liebenberg to only convict his client on the lesser charge of culpable homicide, or murder without direct intent.
Milton Engelbrecht of Engelbrecht Attorneys said the State had failed to prove that his client Ivan Hoëbeb, 32, intended to kill Elizabeth Ganses, who was 26 years old at the time of her demise, during October 30 to 31, 2015.
He maintained that the version of Hoëbeb that the deceased died when he had his arms across the neck of the deceased and fell backwards hitting his head on a rock and lost his consciousness could be true.
As a result, Engelbrecht said, Hoëbeb could not have foreseen that his actions would cause the death of the deceased.
He said the State failed to prove that Hoëbeb robbed the deceased of her cellphone and contended that the only offence proved regarding the cellphone was theft, as evidence was produced that he had the cellphone in his possession after the deceased was found dead.
With regard to the rape charge he asked the court to acquit his client, as according to him: “not a shred of evidence” was adduced by the State to prove the allegation.
He based his submission on the fact that the doctor who performed the autopsy could not positively say the deceased was violated before she was killed and while semen was found in the privates of the deceased the tests were inconclusive.
He, however, conceded to the defeating the course of justice count, but stated that the only offence proved by the State was attempting to defeat and not defeat itself.
Hoëbeb admitted that he was in the company of the deceased on that fateful night, but claimed her death was the result of an unfortunate accident. He denied having raped the deceased or stealing her cellphone and setting her body alight.
State Advocate Henry Muhongo, however, told the court there is no doubt the accused killed the deceased after he raped her. He said all inferences that can be drawn from the evidence suggests that Hoëbeb threatened the deceased with a knife found on the scene covered with the blood of the deceased, raped her, stole her cellphone, strangled her to death and then set her body alight to destroy all evidence of his evil deed.
Muhongo conceded though that if the court should find robbery was not established, that theft is a viable alternative. But, he said, the same cannot be said with relation to the rape and defeating the course of justice charges.
With regard to the rape charge, he said he relied on the testimony of the doctor who testified that he found a 120mm long and 12mm deep injury on the genitalia of the deceased together with the admission of the accused to Deputy Commissioner Khairabeb that he raped the deceased, in addition to the position the body was found – on her back with her legs apart and naked from the waist down.
According to Muhongo, it is beyond comprehension that a passerby stumbling across a body would set it alight. “The only person with the motive to commit such a barbaric act would be the person who raped and killed the deceased and that was the accused,” Muhongo maintained.
Judge Liebenberg reserved his judgment until Thursday, August 10.