Windhoek High Court Judge Dinnah Usiku yesterday ruled a warning statement obtained from a Karibib man, accused of stabbing his former girlfriend to death with a spear, inadmissible.
The ruling comes after Milton Engelbrecht – the State-funded lawyer for Petrus Jacobus du Plessis (52) – objected to the statement admitted as evidence, as it was obtained unlawfully.
According to Engelbrecht, the statement was not obtained freely and voluntary, and Du Plessis’ rights were not fully explained to him.
This led to a trial-within-a-trial to determine the admissibility of the statement.
During the mini-trial, the officer who took down the statement of Du Plessis testified that he explained the rights of the accused, including the right to have a legal representative.
According to Inspector Johan Henry Gaeseb, when he questioned Du Plessis about him wanting a lawyer, Du Plessis said ‘yes’, but that he would get one later and that for the moment, he just wanted to tell the truth.
According to Judge Usiku, it is now common cause that when the accused was questioned by Gaeseb as to whether he wanted a lawyer, he answered in the affirmative.
“It is now also settled law that once an accused was asked whether he wanted legal representation before making a statement and he answers in the affirmative, no further questions should be put to him which may lead him to make any statement,” the judge affirmed.
She further said that such interview should be brought to an end immediately, except perhaps to determine whom the accused’s legal representative is in order to make further arrangements.
“Mr Gaeseb, therefore, was under an obligation to immediately stop the interview instead of proceeding to record a warning statement from the accused,” the judge reiterated.
She went on to say that the right to legal representation, which includes an entitlement to legal aid, must be explained to a suspect in cases of pre-trial proceedings, especially to the uneducated and unsophisticated accused persons in such a manner that an accused person is placed in a position to make an informed decision.
“The explanation of such rights should not be a mere formality, especially where an accused is facing serious charges such as in this case. It is also desirable to make use of competent interpreters to assist in the taking of warning statements by police officials, which could strengthen their credibility,” the judge further emphasised.
She went on to say since the right to have access to a lawyer is inextricably linked with the right not to incriminate oneself, which is one of the requirements of admissibility, the failure on the part of the police not to allow the accused to exercise his right to legal representation at the time the warning statement was recorded constitute an irregularity – and accordingly, the warning statement is ruled inadmissible.
Du Plessis is charged with housebreaking with the intent to murder and murder read with the provisions of the Combating of Domestic Violence Act and one count of assault by threat.
It is alleged that he stabbed Beverly Kurangera, who was 26 years old at the time of her demise, at least eight times with a spear, and threw the spear at Alma Garises and/or threatening to stab her and the three-year-old son of the victim with a spear.
According to the indictment, he broke into the shack of the victim by kicking open the door with the intent to murder the victim and then did unlawfully and intentionally kill her on 25 August 2018 at Old Location in Karibib.
The trial is continuing today.
The prosecution is represented by Seredine Jacobs.