Ex-magistrate’s bail attempt fails again

Former magistrate Jaco Kennedy, who has been held in custody on rape and kidnapping charges for more than 10 years, has again failed with an application to be granted bail.

Kennedy’s latest bail application, based on alleged new facts, was dismissed by judge Naomi Shivute in the Windhoek High Court on Friday.

Kennedy (39) has been held in custody since the end of January 2016, when he was arrested on a charge of rape.

That arrest took place a year after he had been released on bail on an earlier charge of rape, on which he was arrested on 3 January 2015.

He and a co-accused, Raymond Cloete (40), are being prosecuted in the Windhoek High Court, where their trial started before acting judge Kobus Miller in April 2021.

Kennedy and Cloete have both denied guilt on all of the charges they are facing.

In his bail application before Shivute, Kennedy claimed new facts had arisen since his previous application for bail was dismissed in the High Court in September 2023, and that those new facts warranted his release on bail at this stage.

The application heard by Shivute was Kennedy’s fourth request to be granted bail since his second arrest.

Defence lawyer Boris Isaacks, who is representing Kennedy, pointed out that the two complainants in the rape and kidnapping charges faced by Kennedy have testified and the state has closed its case in the criminal trial taking place before Miller.

Isaacks argued that the continued detention of Kennedy would no longer serve a purpose of preventing possible interference with state witnesses, and that it would increasingly resemble anticipatory punishment.

On behalf of the state, however, deputy prosecutor general Filistas Shikerete-Vendura argued that Miller has found that the state has placed evidence before him on which Kennedy may be convicted, and that there is sufficient evidence to place Kennedy on his defence in the matter.

Noting that Kennedy was arrested on a charge of rape for a second time after he had been granted bail on similar charges, Shikerete-Vendura argued he had “demonstrated a propensity to commit serious offences” and that it would not be in the interest of justice to release him on bail again.

In her judgement, Shivute said it was a new fact that the state has closed its case in the trial before Miller.

However, that fact did not weaken the state’s case, and Miller’s decision to put Kennedy on his defence was a clear indication that the state had a stronger case than before, she said.

“This new fact, considered together with the old facts, did not change the basis on which bail was previously refused,” Shivute remarked.

She also said she considered the bases on which Kennedy’s previous bail applications were refused, including the seriousness of the charges against him and the strength of the state’s case.

“Having balanced [Kennedy’s] rights with the public interest and the administration of justice, the public interest and the administration of justice outweighed [his] interest,” she concluded.

The criminal trial before Miller is scheduled to continue from today.

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