By:Justicia Shipena and Hertha Ekandjo
Prosecutor general Martha Imalwa says that if her office did not challenge fishrot accused Ricardo Gustavo’s granting of bail, particularly on the issues of the GPS devices, it would have set a bad precedent.
Gustavo returned to custody on Friday after the Supreme Court revoked the High Court’s decision to grant him bail of N$800 000 last year.
Judges of the appeal were Sylvester Mainga, Dave Smuts and Elton Hoff.
Imalwa said the monitoring system had no basis in law and there is no law governing the monitoring.
“The magistrate courts and lower courts would start filling it. Some of the courts can use this judgement as an example and this might give us difficulty,” she said.
The PG argued that the high court judgement which freed Gustavo was wrong all along and not properly decided.
“Given these misdirections, all of which were material, it is clear that the decision of the court below was wrong and falls to be set aside,” Imalwa explained.
“And that is what has now been confirmed by the Supreme Court. We just did what we are expected to do as prosecutors,” she said.
Questioned on whether she was concerned that Gustavo may have interfered with any evidence in the year that he has been free, the PG said if one is implicated in a case with others and then released on bail, it would affect the others that are still in custody if they then do something wrong while free.
“The accused must behave well at the time they are released so that the others can get a chance to go out,” she told The Villager.
Gustavo’s granting of bail last year was done on several conditions restricting his movements, ability to travel, and to not having any contact with state witnesses and that he should wear a GPS device.
This had the state appeal against the granting of bail.
Gustavo and nine others, including 18 corporate entities, are facing charges of racketeering, money laundering and fraud.
The indictment alleges the sum of N$150 million is involved in offenses levelled against him.
During his bail application in the High Court, the fishrot accused had accepted that the alleged Angolan holding company received fishing quotas of some 50 000 metric tonnes over six years.
Court documents show that he conceded that he had benefited N$22,5 million through his involvement in the activities of Namgomar but denied it was a consequence of illegal activity on his part. This despite refuting that he had received some N$14 million from Namgomar at the previous bail hearing.
In the appeal matter at the Supreme Court, counsel for the State argued that the court was required to determine whether those listed facts brought a new dimension to the inquiry as to whether bail should be granted or not.
The State also argued that the court had wrongly applied its discretion to the inquiry and that the order should be set aside.
Meanwhile, lawyers representing Gustavo argued that the State’s appeal should fail for three reasons and that a court of appeal should only interfere with it when the lower court had exercised its discretion injudiciously.
According to the judgement at the Supreme Court on Friday, the High Court was required to consider the five new facts brought before it against the totality of all the facts and come to a conclusion.
“Only two of the new facts are referred to in the judgement of the court below and then only in very brief terms. They are however not stated to have brought about a changed dimension to the issue of bail.”
It further added that the High Court did not explain the impact of these new facts when viewed against the totality of the facts and certainly does not conclude that they impel the court to admit Gustavo’s bail.
“The failure to do this would of its own constitute a misdirection and shows that the discretion was wrongly exercised. This failure arose because those new facts viewed against the totality of the facts could not have properly resulted in the court reaching its conclusion to admit the respondent to bail,” said the Supreme Court judgement.
On the GPS device, the Supreme Court said no evidence was placed before the court concerning the types and nature of such devices and their availability in Namibia.
Hence it said Gustavo’s release was astonishingly not conditional upon a device in place, adding that the portions of the order concerning the device are vague.
“It is evident from the court’s judgement that the offer to wear such a device was a significant factor for the court in determining to grant bail.”
The Supreme Court also stated that a further misdirection of the High Court was the failure to take into account the evidence and opinions of the investigating officer.
In addition, it said the interest of the public is served by the state addressing serious crime and the scourge of corruption within the operation of the rule of law.
“The court below failed to take into account the seriousness of the charges against the respondent and the impact of the criminal activity and its scale for which he has been charged upon the public and the interest of the public,” it stated.