Judges stand by doctor’s rape charge acquittal

Two Windhoek High Court judges who overturned trainee medical doctor Dennis Noa’s conviction on a rape charge nearly four months ago are standing firmly by their decision.

In a ruling delivered yesterday, judges Philanda Christiaan and Herman January dismissed an application by the state to be permitted to appeal to the Supreme Court against their decision to acquit Noa on a rape charge in November last year.

Christiaan concluded in the court’s ruling that the state has not shown it has prospects for success with an appeal against Noa’s acquittal.

She recounted that in its appeal judgement in November last year, “this court found that the evidence presented by the state falls significantly short of satisfying the required standard of proof, rendering it unreliable”.

Christiaan added: “In this regard, [Noa] is entitled to the benefit of the doubt and stands to be acquitted.”

Noa (30) was accused of raping an 18-year-old patient at Katutura Intermediate Hospital in Windhoek, where he was working as a medical intern, on 11 April 2021.

The patient was being treated in a head injury ward after a road accident that had left him unconscious and immobile.

Noa denied guilt when he stood trial in the Windhoek Regional Court.

He was found guilty in January last year, and in February was sentenced to eight years’ imprisonment.

Noa successfully appealed against his conviction.

In the High Court’s appeal judgement, January found that the version Noa gave during his trial “is not fanciful and far-fetched to simply be rejected as false beyond reasonable doubt”.

Noa told the court during his trial that he handed the patient to a hospital porter and that he was not with the patient for between 30 and 45 minutes before the patient’s return to his ward.

However, state advocate Palmer Kumalo argued in the prosecution’s application for leave to appeal against Noa’s acquittal that Noa was the only person who was with the patient during the period he was suspected to have been sexually violated.

In the court’s ruling yesterday, Christiaan noted that defence lawyer Sisa Namandje, who represented Noa in the appeal, argued that if a sexual act was committed with the patient, Noa was not the only person who had an opportunity to commit the offence.

Christiaan added that if it were to be inferred that a sexual act with the patient had occurred, it cannot be inferred conclusively that Noa was the perpetrator, especially given a lack of forensic evidence, including DNA test results.

Regarding Noa’s version of events during the trial, Christiaan commented that it could not be said to have been without shortcomings.

“However, no onus rests on the accused to convince the court of the truth of any explanations he had given, even if that explanation is improbable,” she continued.

“What is required is for the court to be convinced that such explanation is not only improbable, but false beyond reasonable doubt. The test remains whether there is a reasonable possibility that the accused’s evidence may be true and, in applying that test, the court need not even believe his story. It is sufficient if the court is satisfied that there is a reasonable possibility that it may be substantially true,” Christiaan stated.

Noa was held in custody for nearly three months after his arrest, before he was granted bail. After being found guilty, he spent nearly 10 months in prison before his appeal succeeded.