Windhoek High Court Judge Dinnah Usiku this week ruled an identity parade held in Swakopmund that identified Panduleni Gotlieb (34) and David Shekudja (39) as two of the men who broke into the residence of Walvis Bay businessman Hans- Jörg Möller inadmissible.
Möller was killed when he came to the defence of his wife and children during the early morning hours of 17 June 2016 in the daring robbery.
Gotlieb, David Tashiya (33), Shekudja, Elly Ndapuka Hinaivali (33) and Malakia Shiweda (32) pleaded not guilty to charges of murder, attempted murder, conspiracy to commit housebreaking with the intent to rob and robbery with aggravating circumstances, housebreaking with the intent to rob and robbery with aggravating circumstances and two counts of unlawful possession of a firearm and ammunition.
After the State introduced the identity parade in which the wife of the deceased, Carol-Anne Möller identified the two men as part of her assailants and Gotlieb as the one who shot her husband, their legal representatives objected to the evidence being admitted.
According to them, their instructions from their clients are that their right to legal aid was not explained to them. However, chief inspector Raphael Litota who conducted the ID parade testified that he did explain their rights to legal aid to them through an Oshiwambo interpreter. The interpreter, constable Veikko Kambabi, also testified that he interpreted the rights as explained verbally by Litota.
The pro-forma document the police used to explain the rights and which the accused had to sign did not have a portion where the right to legal aid is explained. Both Gotlieb and Shekudja maintained that they signed the pro-forma to confirm that they were informed of their rights to acquire the services of a private lawyer and that they could have a friend or family member to be present at the ID parade, but that the right to legal aid was not explained, neither were they afforded sufficient time to exercise such right.
Judge Usiku said it is an undisputed rule of law that once an accused is arrested, he/she is entitled to legal representation. It is trite that an arresting officer must explain the rights to an arrested person and that must include the right to legal aid, she said. While an identification parade is of critical importance in a criminal trial, she said, a member who conducts the parade should be careful to ensure the fairness of the identification parade because it is an investigative process and reliability of the resulting identifying evidence, can be guaranteed.
“As alluded to, the right to legal aid was not documented on the pro-forma document used by members of the Namibian Police and this court is not in the position to confirm whether indeed the rights were explained,” the judge remarked.
She added that it is the duty of the State if it intends to rely on the evidence of an identification parade, to establish that the parade was conducted fairly.
“It cannot be said that the parade was conducted fairly if the accused’s right to apply for legal aid representation had not been fully explained to them in order to make an informed decision on how to proceed during the conduct of an identification parade.
The State is represented by Basson Lilungwe, Gotlieb by Tjingairi Kaurivi, Tashiya by Kalundu Kamwi, Shekudja by legal aid lawyer Tanya Klazen, Solomon Kanyemba represents Hinaivali and Joseph Andreas is on record for Shiweda. The accused remain in custody.