Battle over oral evidence

By IAfrica
In Namibia
Feb 26th, 2014

WINDHOEK – The State and defence both contended in their submissions the admissibility of a statement that Erwin Kock made to the police two days after his arrest for murder, rape and robbery.

Deputy Prosecutor General Karin Esterhuizen asked Judge Naomi Shivute to admit the admissions Kock made to Warrant-Officer Theodore Kutongtondo in a statement taken down on Sunday 5 October, 2008 after his arrest the previous Friday.

According to Esterhuizen, Kock’s inability to tell the court on which day the police allegedly assaulted him cast serious doubt on his credibility. She said that his claims of assault were borne out of desperation and were a clear fabrication.

On his part Boris Isaacks who appears for Kock on instructions of the Legal Aid Department argued Kock does not have to prove beyond a reasonable doubt he was assaulted, but the onus is on the State to disprove his allegations beyond a reasonable doubt.

He said the State’s duty is to prove the admissions were made freely and voluntarily and that an accused person’s constitutional rights were not infringed upon. These rights, he said, comprises the right to a fair trial, the presumption of innocent until proven guilty, the right against self-incrimination and the right to have evidence excluded in violation of this right.

He said with regard to the right to a fair trial, an accused person has the right not only to consult with a legal practitioner during pre-trial stages but to be informed of this right. Isaacks was adamant that while Kock was advised of his right to legal representation, he was brought under the impression that he could only exercise that right once he appeared before a court of law.

Isaacks further submitted that  Kock’s confusion about the date he was allegedly assaulted does not mean the assaults did not take place. “In fact” Isaacks stressed, “the only thing he was certain about was the fact that he was assaulted.”

During the trial-within-a-trial the two police officers Kock claimed beat and threatened him when his statement was taken flat-out denied Kock’s claims. Detective Constable Sebedius Arebeb and Detective Sergeant Pineas Ganaseb both claimed they were not even on duty that weekend and only came to hear about the case when they reported for duty on Monday.

The State alleges Kock raped, killed and robbed 58-year old Rebecca Isaaks in Keetmanshoop during the period 2 to 3 October 2008.

Judge Shivute indicated she will deliver her ruling on the admissibility of the  statement on 23 April  and Kock remains in custody.

By Roland Routh

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