Boulter challenges ‘subjective’ prosecution verdict in Supreme Court

The High Court misdirected itself by upholding what it called a ‘subjective’ obligation of the prosecutor-general to prosecute businessman Harvey Boulter for murder instead of basing that decision exclusively on definitive forensic evidence, his lawyers argued in appeal papers filed in the Supreme Court last week.Boulter, who denied the charges against him, also criticised what he termed as the placement of the burden of proof on him rather than those seeking to prosecute him.Prosecutor-General Martha Imalwa decided to prosecute Boulter on counts of murder, possession of a firearm and ammunition without a licence and handling a firearm while intoxicated in connection with the death of his farm manager Gerhard van Wyk in February 2021.In late August, Judge Herman Oosthuizen ruled that Imalwa’s decision to prosecute Boulter on these counts was reasonable and rational.Oosthuizen argued that the prosecutor-general must have a “subjective conviction” that the person is guilty of the complaint. He believes 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.‘Radical deviation’In his appeal, Boulter argued that Imalwa is obliged, under the constitution, to base her decision to prosecute on objective facts, rather than subjective convictions.Also central to Boulter’s appeal is the claim that the decision to prosecute was based on insufficient and inconclusive evidence, particularly concerning the forensic details surrounding the Kamanjab farm incident. The defence argued that the High Court failed to adequately consider the absence of definitive forensic evidence as a valid prohibitive factor to proceed with prosecution.By relying on a subjective interpretation and ignoring objective evidence, the prosecutor-general&#039;s decision to proceed with prosecution is a radical deviation from the principles of justice and fairness enshrined in Namibian law, Boulter said.This, he added, has the potential to compromise the integrity of the legal process and undermine public confidence in the judicial system.“The High Court’s emphasis on and consideration of a subjective belief of [Imalwa], and its expectation that [Boulter] should have shown that [the prosecutor-general] did not subjectively believe in his guilt is a grave misdirection as that element is only relevant in the context of [Imalwa’s] defence to a malicious prosecution claim,” court documents read.“This is an attempt by the High Court to shift the burden to [Boulter] by placing emphasis on the prosecutor-general’s subjective belief in [his] guilt, rather than requiring the [State] to prove that there was reasonable and probable cause to prosecute based on objective facts at [Imalwa’s] disposal and the evidence or lack thereof.”

Boulter challenges ‘subjective’ prosecution verdict in Supreme Court

Comments

Namibian Sun 2025-05-02

Please login to leave a comment

Boulter challenges ‘subjective’ prosecution verdict in Supreme Court

Comments

Namibian Sun 2025-05-02

Please login to leave a comment

Login