The two American citizens recently sentenced for the murder of Andrè Heckmair in January 2011 want to appeal their convictions and sentences in the Supreme Court.
Marcus Thomas and Kevan Townsend lodged their application for leave to appeal yesterday before Windhoek High Court Judge Christi Liebenberg. The judge, however, remanded the matter to 29 January 2024 to allow Thomas to apply for Legal Aid as he terminated the mandate of his previous Legal Aid-instructed lawyer Salomon Kanyemba.
Townsend’s lawyer Mbanga Siyomunji has listed 21 grounds in his application on which he says the judge was wrong in his decision to convict and one ground on the sentence.
According to him, the judge did not take into consideration the time Townsend spent in custody pending the finalisation of the trial in the sentence. With regards to the conviction, he says the judge erred when he concluded that Townsend was always in the company of his co-accused contrary to testimony to the opposite. Further, he said, the judge erred when he found that Townsend was part of the discussions relating to the rental of the vehicle or the discussions around the whereabouts of the deceased.
Also, he said, the judge erred when he concluded that his client was part of the gun transaction contrary to the evidence presented.
The judge erred by not considering that there was no connection of Townsend to the scene of the crime and no items of the deceased were found in possession of his client, Siyomunji stated and continued that his fingerprints were not found on the vehicle the deceased was driving at the time of the murder.
Siyomunji further states that the judge was wrong in relying on the hearsay evidence of Birgit and Bianca Heckmair, but rejecting the hearsay evidence of Maria Maseko provided to the instigating officers and not considering that the State deliberately did not call Maseko as her evidence would be fatal to the State’s case. Further, Siyomunji said the judge was wrong in convicting Townsend of possession of ammunition when no ammunition was found in his possession or that of his co-accused.
The judge was also wrong according to him, in concluding that Townsend acted in common purpose with his co-accused. He further questioned the judge’s conduct by not allowing them to go into the contents of Exhibit X – the black notebook – during the trial and by extension no cross-examination could be done on it but relying on the same exhibit to convict the applicant.
Also, he said, the judge committed a gross irregularity by denying the applicants to cross-examine the rights violation of the applicants by the police officers as well as declaring the illegal search of 9 January 2011 as admissible.
Thomas and Townsend were convicted of killing Heckmair with a single gunshot to the right temple in Gusinde Street, a quiet cul de sac in Klein Windhoek on 7 January 2011.
Thomas was sentenced to a jail term of 30 years and Townsend to 29 years with several other sentences of fines, with alternative jail terms. The judge sentenced them to 27 years each on the murder conviction and four years on the robbery conviction.
He further sentenced Thomas to N$4 000 or one year for importing firearms, and Townend to N$1 000 or six months for possessing firearms without a permit. Both were sentenced to N$1 000 or six months imprisonment for possessing firearms and ammunition without a licence. The judge further ordered that two years of the robbery sentence must run concurrently with the sentence on murder.
The State is represented by deputy prosecutor general Antonia Verhoef.
– rrouth@nepc.com.na