Lawyer Nafimane Halweendo has said that there is nothing sinister about former fisheries and marine resources minister, Bernard Esau, not calling in a witness in his bid for bail at the magistrate’s court.
Esau has this week grabbed headlines for claiming that there is a bid to tarnish his name by keeping him jailed as investigations gather steam on the Fish-rot scandal, the biggest Namibia has had to deal with 30 years after independence.
Instead of testifying in person and calling in a witness to back up his case, the embattled ex-minister has rather opted to lay before the magistrate, a 40-page affidavit.
“For the purposes of getting bail, he has to, of course, satisfy the court that in relation to the case, perhaps that the state does not have a strong case against him. In relation to his personal circumstances, he would want to convince the court that he is not a flight risk. That it is in the interest of justice that he be released on bail and perhaps he would want to highlight to the court some of the disadvantages that can befall his family, himself and some other members of society if he is not released on bail.
The fact that he has decided to do it by way of an affidavit, of course, it is a personal election but it doesn’t remove the fact that he still has to satisfy the court that it will be in the interest of justice for him to be released on bail. They are simply going to be reading the 40-page affidavit to the magistrate,” said Halweendo.
He also said, “Whatever facts are admitted in bail proceedings by an accused person may also be used against him at the trial. So those are some of the difficulties of testifying in person and when being cross-examined by the prosecutor, you then run the risk of admitting certain facts which are maybe admissible
On not bringing forth a witness, Halweendo said this is not to say that he does not have any.
“But it is customary not to present your witnesses at this stage. Again, as I said, the evidence at bail hearings is evidence that is admissible during the trial. You do not know what new evidence the state is going to discover during the course of the investigations. It is actually wise not to present any of your witnesses as an accused person during a bail hearing,” he said.
Admissible evidence, in a court of law, is any testimonial, documentary, or tangible evidence that may be introduced to a factfinder, usually a judge or jury, to establish or to bolster a point put forth by a party to the proceeding.
For evidence to be admissible, it must be relevant and “not excluded by the rules of evidence”, which generally means that it must not be unfairly prejudicial, and it must have some indicia of reliability.
The general rule in evidence is that all relevant evidence is admissible and all irrelevant evidence is inadmissible, though some countries (such as the United States and, to an extent, Australia) proscribe the prosecution from exploiting evidence obtained in violation of constitutional law, thereby rendering relevant evidence inadmissible.