WINDHOEK – Judge Alfred Siboleka on Tuesday granted approval to introduce a report compiled by Maryn Swart of the Namibia Forensic and Scientific Institute. The report was only commissioned in February of this year prompting the defence counsels of Charles Namiseb and Edwin Tourob to object to its admissibility.
The defence described the report as new evidence and argued strongly that it should not be admitted as evidence. They further argued that it would infringe on their clients’ constitutional right to a fair trial, since they did not have the opportunity to study it prior to its submission as additional evidence. Brownell Uirab, who represents Namiseb on instructions of the legal aid directorate strongly objected to the report, saying the state had ample time to complete its investigation and that to come up with new evidence at this stage in the trial is tantamount to derailing his defence strategy. He also claimed that had he known earlier about the new evidence, he would have devised a different approach to his defence.
Christian Nambahu, on behalf of Tourob also made strong objections calling the introduction of the new evidence “an ambush.”
He said the “ambush tactics” of the prosecution took the defence by surprise. According to him any prejudice could only be suffered by the accused, since the prosecution has nothing to lose if the report is disallowed. However, Advocate Innocencia Nyoni for the prosecution took exception to Nambahu’s assertion that she used ambush tactics. She said the defence counsels for both accused had known from the start that a forensic investigation would be conducted. In her view the report contains expert evidence and cannot possibly prejudice the accused or derail the strategies of the defence as claimed.
According to Nyoni the only manner in which the defence could be prejudiced is if the new evidence was withheld from them on purpose, which is not the case.
She further said she only received the report on March 16 and immediately made it available to the defence.
In his ruling given immediately after the counsels finished their arguments, Judge Siboleka said any question of prejudice to the accused is slim to non-existent.
He agreed that the evidence in question is expert evidence that will be given by an expert witness – in fact the very same person that authored the report. Namiseb and Edwin Tourob are accused of assaulting and robbing an elderly couple at the sleepy town of Uis in the Erongo Region on October 3, 2010 and also of raping a 69-year-old woman.
By Roland Routh