Tomas not allowed to appeal against dismissal of recusal application

The High Court here has on Tuesday refused to allow American national Marcus Kevin Tomas leave to appeal against the dismissal of his earlier application to have Judge Christie Liebenberg recuse himself from presiding over the trial of his alleged murder case.

Judge Liebenberg is presiding over the trial in which Tomas is charged alongside his fellow countryman, Kevan Townsend, for the death of Windhoek resident, Andre Heckmair in January 2011

The recusal application bid was dismissed by Judge Liebenberg on 18 September 2019 because Tomas could not prove beyond reasonable doubt through the presentation of prima facie evidence that the presiding judge will not be impartial in handling the continuation of the trial.

Not happy with the dismissal of the recusal application, Tomas on the same day (18 September 2019) through his State-funded defence lawyer Titus Ipumbu lodged an urgent application to be allowed leave to appeal against the dismissal of the recusal attempt.

Tomas' appeal attempt failed again on Tuesday when it was dismissed in a ruling handed down by Judge Liebenberg because there are no better prospects that the appeal bid will succeed in another court if is allowed to be heard.

In addition, an attempt by accused Townsend to have a separation of trial from that of Tomas also failed on Tuesday when the application was dismissed by same judge.

'These two people (Marcus Tomas and Kevan Tiownsend) are charged jointly and a separation or duplication of their trial would lead to the wastage of the public resources. The two people should be tried together and it is not in the interests of the administration of justice and public to separate their trial at this stage, ' said Judge as he dismissed Townsend' application for the separation of trial.

In the result, the matter was on Tuesday postponed until 28 October 2019 for the continuation of the trial.

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.

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.

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.

Mbanga Siyomuinji is defending Townsend while Deputy Prosecutor-General Antonia Verhoef is appearing for the prosecution.

Source: Namibia Press Agency