Boulter’s application against prosecution fails
“Under the circumstances, the prosecutor-general’s decision to prosecute [Harvey Boulter] and to proceed with his prosecution is reasonable and rational.”This according to Judge Herman Oosthuizen, who on Friday in the Windhoek High Court rejected the British billionaire’s application to have his prosecution for murder set aside.
Prosecutor-General (PG) Martha Imalwa argued during the hearing that her decision cannot be reviewed by a civil court. “The prosecution must continue for the criminal court to pronounce itself on [Boulter’s] guilt or innocence.”
Although Oosthuizen found that Imalwa’s decision could be reviewed, he decided that her decision to prosecute Boulter on the murder charge was rational.
“When the PG makes a decision to prosecute, he/she must have reasonable and probable cause to do so. The High Court in Namibia accepted that the PG in his/her decision must have an honest belief in the guilt of the person,” Oosthuizen said in his ruling.
He further pointed out that the PG must have a “subjective conviction” that the person is guilty of the complaint. He believes that this conviction can be achieved by taking into account the facts and allegations that may not be admissible to convict someone in a court of law.
“In making a decision to prosecute, the PG is not required to make findings or have a conviction beyond reasonable doubt. Her subjective belief that the person is likely to be guilty will suffice.”
Oosthuizen emphasised in his judgment that Boulter had to prove that Imalwa did not subjectively believe in his guilt when she made her decision. He dismissed the application on that basis and ordered Boulter to pay the costs of the court application.
Hearing continues
Boulter’s criminal trial is still pending in the Windhoek High Court.
He is on trial for murder and other charges related to the Firearms Act. The State claims that he shot his farm manager, Gerhard van Wyk Senior, on 27 February 2021 with intent.
Boulter claims the shot went off in the middle of a scuffle while Van Wyk tried to take Boulter’s 9mm pistol from him.
– [email protected]
Prosecutor-General (PG) Martha Imalwa argued during the hearing that her decision cannot be reviewed by a civil court. “The prosecution must continue for the criminal court to pronounce itself on [Boulter’s] guilt or innocence.”
Although Oosthuizen found that Imalwa’s decision could be reviewed, he decided that her decision to prosecute Boulter on the murder charge was rational.
“When the PG makes a decision to prosecute, he/she must have reasonable and probable cause to do so. The High Court in Namibia accepted that the PG in his/her decision must have an honest belief in the guilt of the person,” Oosthuizen said in his ruling.
He further pointed out that the PG must have a “subjective conviction” that the person is guilty of the complaint. He believes that this conviction can be achieved by taking into account the facts and allegations that may not be admissible to convict someone in a court of law.
“In making a decision to prosecute, the PG is not required to make findings or have a conviction beyond reasonable doubt. Her subjective belief that the person is likely to be guilty will suffice.”
Oosthuizen emphasised in his judgment that Boulter had to prove that Imalwa did not subjectively believe in his guilt when she made her decision. He dismissed the application on that basis and ordered Boulter to pay the costs of the court application.
Hearing continues
Boulter’s criminal trial is still pending in the Windhoek High Court.
He is on trial for murder and other charges related to the Firearms Act. The State claims that he shot his farm manager, Gerhard van Wyk Senior, on 27 February 2021 with intent.
Boulter claims the shot went off in the middle of a scuffle while Van Wyk tried to take Boulter’s 9mm pistol from him.
– [email protected]
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