Roland Routh

The lawyers of the two American citizens accused of the assassin-like murder of Namibian André Heckmair wish to apply for discharge.

Yesterday, they informed Windhoek High Court Judge Christi Liebenberg that they will apply for the discharge of their clients in terms of section 174 of the Criminal Procedures Act.

A section 174 application is when the State closed its case and the State did not provide sufficient evidence to convict without an accused supplying incriminating evidence during his/her testimony. It allows a presiding officer to find such accused not guilty without testifying in own defence, if the presiding officer determines no prima facie evidence exists. Salomon Kanyemba on behalf of Thomas Marcus on Legal Aid instructions and Mbanga Siyomunji on behalf of Kevan Townsend on private instructions told the judge that in their view, the State failed miserably to prove the guilt of their clients.

Judge Liebenberg gave the defence until 26 May to submit written arguments on why their application should be granted and the State until 9 June to prove the opposite.

He indicated that he will deliver his ruling on 19 June. Siyomunji who had already prepared his written arguments argue that it is clear that the State failed to prove their allegations on a balance of probabilities.

According to him, the silencer and gun barrels are brand-new and cannot be linked to any of the charges. Further, he said, the firearm used in the murder was not found and as such cannot be linked to his client (Townsend). As such, he said, Townsend cannot be linked to the murder in any manner. Additionally, Siyomunji argue, none of the property of the deceased were found with Townsend, so he can’t be linked to the robbery count as well. Also, he said, no evidence was presented that his client imported any firearm nor was he found in possession of any firearm or ammunition and he is also not implicated on the count of defeating or attempting to defeat the course of justice.

“We submit that the only conclusion that can be reached when evaluating the evidence is that it does not point to the direction of accused two as the State has failed to show on a balance of probabilities that accused two is guilty of the charges proffered against him or that he has any case to answer,” Siyomunji said and concluded that Townsend is entitled to a discharge on all counts.

Kanyemba indicated that he will provide his written arguments to the court in due time.  Thomas and Townsend are facing one count of murder, one count of robbery with aggravating circumstances, three counts of contravening the Ammunitions Act and one count of defeating or obstructing or attempting to defeat or obstruct the course of justice. The State alleges they killed Heckmair, who is the son of the owners of the Cattle Baron Steak Ranch, by shooting him assassin style in his head on 7 January 2011 at Gusinde Street in Windhoek.

It is further alleged that they robbed Heckmair of his cellphone and wallet containing at 100 Swiss Franc, and that they imported two 9mm pistol barrels without a permit or alternatively possession of the 9mm barrels without a licence as well possessing a 7.65mm pistol and ammunition without a licence.

It is further alleged that they removed a notebook from police possession after the police seized it as an exhibit and/or burned, destroyed or otherwise dispose of some of the pages in the book with the aim to defeat or obstruct the course of justice. The accused persons are in custody at the trial awaiting section at the Windhoek Correctional Facility. The State is represented by deputy prosecutor general Antonia Verhoef.

-rrouth@nepc.com.na