Application for Judge’s recusal fails

An attempt by Marcus Kevin Tomas, an American national accused of murdering Namibian national, Andre Heckmair in January 2011, seeking the recusal of High Court Judge Christie Liebenberg from continuing to preside over the trial, failed on Wednesday.

Judge Liebenberg is presiding over this trial in which Tomas is charged alongside his fellow countryman Kevan Townsend over the death of Windhoek resident Heckmair.

The attempt failed when Tomas' application for the judge's recusal was dismissed in judgement handed down by Judge Liebenberg himself on Wednesday morning.

The recusal application was dismissed because Tomas could not prove his case beyond reasonable doubts through the presentation of prima facie evidence that the presiding Judge will not be impartial in handling the continuation of the trial.

' Accused Marcus Kevin Tomas' version that there is an apprehension of bias if Judge Christie Liebenberg is allowed to continue presiding over this trial is based on wrong facts and unfounded, ' said the judge as he dismissed the application.

Meanwhile, Tomas has already given instructions to his Legal Aid-funded defence lawyer Titus Ipumbu to lodge an urgent application to be allowed leave to appeal against the dismissal of the recusal bid.

State representative, Deputy Prosecutor-General Antonia Verhoef said the prosecution will again oppose Tomas' application for leave to appeal against the dismissal of recusal attempt.

Tomas' application for leave to appeal is now set down to be heard before court on Friday, 20 September 2019, at about 10h00.

In addition, defence lawyer Mbanga Siyomuinji for Townsend has also brought an urgent application asking the court to separate the trial of his client from that of Tomas, and this application for the separation of the trial will be heard on 28 October 2019.

In his heads of argument in respect of the failed recusal application, Tomas submitted it would be in the interest of the administration of justice for presiding judge Liebenberg to recuse himself from the trial so as to ensure a fair and impartial finality on the matter.

Tomas unsuccessfully wanted the proceedings of his criminal trial to be stopped and to start afresh under another judge.

Townsend did not form part of the failed recusal application.

The two Americans each face charges of murder; robbery with aggravating circumstances; unlawful importation of a firearm into Namibia; illegal possession of a firearm; illegal possession of ammunition; and attempting to defeat or obstruct the course of justice.

They are the only suspects mentioned by the Namibian Police Force in connection with the investigations into the murder of Heckmair.

According to the police, Heckmair was found dead behind the wheel of a Land Cruiser in a cul-de-sac in the Klein Windhoek residential area on 07 January 2011.

Investigations launched by the police led them to Townsend and Tomas, and they were arrested on 13 January 2011 and made their first court appearance on 14 January 2011.

At the time of arrest, the police had been unable to locate the murder weapon or the mobile phone and wallet containing at least N.dollars 1 000 that were missing from Heckmair's car.

The two American nationals are being held at the Windhoek Central Correctional Service facility, with no option to post bail since their arrest in 2011.

Source: Namibia Press Agency