Windhoek-High Court Judge Dinah Usiku yesterday made short work of dismissing an application for the discharge of some of the charges, which Walvis Bay resident Piet Kondjele Nakanene lodged after the state closed its case in his multiple rape and murder trial.
After State Advocate Innocencia Nyoni closed her case on Tuesday, Nakanene’s legal aid lawyer, Mpokiseng Dube, sounded his intention to lodge an application to discharge the rape and attempted murder charges.
Nyoni informed the court she would oppose the application.
Yesterday Dube told the court that the evidence placed before court on the count of housebreaking with intent to rape and rape, and attempted rape, was not enough to sustain the charge. According to him the complainant in the matter conceded in court that she could not remember much of the night in question as she was drunk.
Dube said the complainant testified that Nakanene never touched her inappropriately although he was naked. He told the court that the only charge that is sustainable is that of breaking and entering with intent to commit assault and assault.
With regard to counts two and three, Dube said that swabs taken from the complainant were negative for semen although the complainant testified that semen was running down her thighs after the alleged rape.
According to him no evidence was adduced that the accused raped the complainant and her evidence “is untenable and cannot be regarded as prima facie”.
Regarding the counts of attempted rape and attempted murder, Dube said the evidence that was before court was that the complainant was assaulted. According to him the complainant’s testimony was fraught with inconsistencies and contradictions.
About her claim that Nakanene strangled her to the point that she lost consciousness, but she was still able to feel him undressing her, Dube said it “was an impossibility”. “How can you be unconscious and still feel someone undressing you?” Dube asked.
On the charge of rape of the deceased, Dube said there was evidence before court that Nakanene and the deceased were involved in an intimate relationship, which could explain the presence of her DNA on his bedding and his DNA beneath her fingernail. According to him, semen found where a relationship exists or existed cannot constitute rape and he asked the court to discharge Nakanene on the count of rape.
The prosecutor Nyoni on the other hand told the court that the issue of credibility plays a very limited role at the stage of an application to discharge some of the charges and testimonies. According to her, it is only in an instance where the evidence before court is of such poor quality that no reasonable person would believe it, can a court order a discharge. In this case, she said, the evidence is of such a nature that it seeks an answer from the accused.
Judge Usiku gave her ruling immediately after arguments by the lawyers and said she believes prima facie evidence was placed before court to which the accused must answer.
Nakanene faces two charges of housebreaking with intent to rape, three counts of rape, two counts of attempted rape, two counts of attempted murder, one count of murder and one count of defeating or obstructing the course of justice. It is alleged that he raped or attempted to rape three women who may not be named before he killed Benedine Letesia Baumgartner after he raped her in his room in Kuisebmond between March 12 and 13, 2014
He denied guilt on all charges at the start of his trial in February last year.
The trial is set to continue rom April 17 to 19 this year when Nakanene is expected to testify and will call one witness.