Items that were seized without a search warrant from a guesthouse in Windhoek where two American nationals, accused of the assassin-like murder of Andre Heckmair were staying, could be used as evidence in their ongoing trial.
High Court Judge Christie Liebenberg found that the right to the privacy of Marcus Thomas and his co-accused Kevan Townsend, when considered in the circumstances where real evidence was discovered which could probably be linked to the murder investigation, is of a less serious nature.
The judge stated that police officers at the time acted in good faith when they conducted the searches because, during the first search, they stumbled upon gun barrels, which prompted a further search of the room. Their conduct was thus justified with regards to public safety, considering the background of the murder investigation.
“I am accordingly satisfied that the admissibility of real evidence consequent upon the search conducted at African Sky Guesthouse (Room 5) on 9 January 2011 will not render the trial of the accused persons unfair, neither would it in my view be detrimental to the administration of justice,” said Liebenberg.
Thomas and Townsend lodged an application questioning the legality of the search at the guesthouse where they were staying when they were arrested, particularly on the items which were seized. The searches were conducted on 7, 8 and 9 January 2011.
The accused objected to the admissibility of the exhibits because, according to them, the search was done unlawfully without a search warrant.
The State contended that the search was done lawfully because there was no time to wait for a search warrant as the accused could have destroyed the evidence during the time that they would have been looking for a magistrate to sign the warrant.
Thomas and Townsend are currently on trial 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 that they killed Heckmair by shooting him in his head on 7 January 2011 at Gusinde Street in Windhoek.
The prosecution is alleging that the two accused met in New York in the United States of America, where Thomas paid the bail of Townsend for an unrelated incident.
After the release of Townsend, they travelled to Helsinki in Finland, from where they forwarded a package to Namibia containing a firearm silencer. However, it was labelled ‘furniture spare’ or ‘table leg replacement’ in preparation for their plan to travel to Namibia and allegedly kill the victim.
After they arrived in Namibia, court documents state that they started making enquiries about the whereabouts of Heckmair, and bought an illegal 7.65mm pistol.
After they managed to contact Heckmair, they lured him to the quiet Gusinde Street in Windhoek’s Eros suburb, where they shot him once in the head as well as robbed him of his cell phone and wallet containing 100 Swiss franc.
Thomas and Townsend were arrested at a guesthouse in Windhoek on the evening after the killing.
After their arrest, the indictment further reads, they managed to steal the notebook from the police when they were brought to one of the investigators’ offices to collect their clothing and toiletries.
The accused are represented by Mbanga Siyomunji and Salomon Kanyemba, with Antonia Verhoef prosecuting. Their trial will resume on 26 September.