Americans fail in bid for leave to appeal
Judge stands by conviction
Kevan Townsend and Marcus Thomas have failed in their application to approach the Supreme Court to challenge their conviction and sentencing.
Marcus Thomas and Kevan Townsend's application for leave to appeal their conviction and hefty prison sentences for the murder of 2011 André Heckmair was dismissed this week in the Windhoek High Court.
Judge Christie Liebenberg, who presided over the lengthy trial and retired shortly after, handled the application.
“There is nothing indicating that the sentences imposed are improper and thus not in accordance with justice. This court stands by its findings and the sentences imposed,” his ruling issued on Monday reads.
Liebenberg emphasised in his ruling that the mere possibility that another court might come to a different conclusion is not sufficient grounds to justify an application for leave to appeal.
“The test is whether the applicants, on a balance of probabilities, with consideration of the grounds of appeal raised, have reasonable prospects of success in the appeal,” Liebenberg noted, indicating that Thomas and Townsend's application did not meet this requirement.
The two men were convicted on 6 September 2023 and sentenced on 26 October 2023. Thomas received 30 years' imprisonment, and Townsend was sentenced to 29 years.
Multiple grounds
Thomas listed more than 50 grounds of appeal, including alleged irregularities during the recording of his plea proceedings in November 2014, the findings of his psychiatric evaluation and certain decisions made by Liebenberg during the trial.
Thomas argued that Liebenberg denied an application for a postponement after one of his many legal representatives withdrew from the case, forcing Thomas to represent himself. He further claimed that his inability to cross-examine State witnesses amounted to an unfair trial.
In his ruling, Liebenberg pointed out that the court record clearly shows that Thomas simply refused to question the State witnesses while he was without representation.
“The testimony provided by these witnesses was not complicated and could have easily been addressed by the applicant [Thomas],” the judge stated.
Regarding his plea proceedings, Thomas alleged that Townsend was instructed to plead on his behalf for one of the charges. In his ruling, Liebenberg clarified this ground for appeal, stating that Townsend merely repeated Thomas's plea after the court couldn't clearly hear what Thomas had said.
“He did not plead on his behalf but merely repeated his plea,” Liebenberg said, adding that Thomas's legal representative also confirmed that this was in line with the instructions he had received from Thomas.
Thomas also objected to the fact that during the plea proceedings, it wasn’t established whether he understood the charges against him or if he was mentally fit to comprehend the proceedings. According to Liebenberg's ruling, this issue was raised for the very first time now.
“This ground [for appeal] clearly came as an afterthought and had no impact on the outcome of the trial.”
'Beyond reasonable doubt'
In his ruling, Liebenberg stated that he stands by his conviction decision.
“The evidence presented has undoubtedly and beyond reasonable doubt established that the applicants came to Namibia together. They stayed in the same accommodation, shared a room and were together when they purchased the SIM card.
“The crime was premeditated and they clearly acted with a common purpose.”
Townsend listed 21 grounds for appeal, among them that there was a lack of evidence connecting him to the crime scene.
“The court, in its ruling, considered and acknowledged the lack of direct evidence linking the applicants to the murder scene. However, after thorough consideration of all the evidence presented, the court concluded that the applicants killed the deceased,” Liebenberg stated in his ruling, adding that this ground, therefore, lacks merit.
Townsend also objected to the fact that no fingerprints or palm prints were found in the deceased's vehicle, in which he was killed. Liebenberg acknowledged that this fact was never in dispute.
“However, this does not exclude the applicants. In any case, this is not a valid reason for appeal and requires no further consideration.”
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Judge Christie Liebenberg, who presided over the lengthy trial and retired shortly after, handled the application.
“There is nothing indicating that the sentences imposed are improper and thus not in accordance with justice. This court stands by its findings and the sentences imposed,” his ruling issued on Monday reads.
Liebenberg emphasised in his ruling that the mere possibility that another court might come to a different conclusion is not sufficient grounds to justify an application for leave to appeal.
“The test is whether the applicants, on a balance of probabilities, with consideration of the grounds of appeal raised, have reasonable prospects of success in the appeal,” Liebenberg noted, indicating that Thomas and Townsend's application did not meet this requirement.
The two men were convicted on 6 September 2023 and sentenced on 26 October 2023. Thomas received 30 years' imprisonment, and Townsend was sentenced to 29 years.
Multiple grounds
Thomas listed more than 50 grounds of appeal, including alleged irregularities during the recording of his plea proceedings in November 2014, the findings of his psychiatric evaluation and certain decisions made by Liebenberg during the trial.
Thomas argued that Liebenberg denied an application for a postponement after one of his many legal representatives withdrew from the case, forcing Thomas to represent himself. He further claimed that his inability to cross-examine State witnesses amounted to an unfair trial.
In his ruling, Liebenberg pointed out that the court record clearly shows that Thomas simply refused to question the State witnesses while he was without representation.
“The testimony provided by these witnesses was not complicated and could have easily been addressed by the applicant [Thomas],” the judge stated.
Regarding his plea proceedings, Thomas alleged that Townsend was instructed to plead on his behalf for one of the charges. In his ruling, Liebenberg clarified this ground for appeal, stating that Townsend merely repeated Thomas's plea after the court couldn't clearly hear what Thomas had said.
“He did not plead on his behalf but merely repeated his plea,” Liebenberg said, adding that Thomas's legal representative also confirmed that this was in line with the instructions he had received from Thomas.
Thomas also objected to the fact that during the plea proceedings, it wasn’t established whether he understood the charges against him or if he was mentally fit to comprehend the proceedings. According to Liebenberg's ruling, this issue was raised for the very first time now.
“This ground [for appeal] clearly came as an afterthought and had no impact on the outcome of the trial.”
'Beyond reasonable doubt'
In his ruling, Liebenberg stated that he stands by his conviction decision.
“The evidence presented has undoubtedly and beyond reasonable doubt established that the applicants came to Namibia together. They stayed in the same accommodation, shared a room and were together when they purchased the SIM card.
“The crime was premeditated and they clearly acted with a common purpose.”
Townsend listed 21 grounds for appeal, among them that there was a lack of evidence connecting him to the crime scene.
“The court, in its ruling, considered and acknowledged the lack of direct evidence linking the applicants to the murder scene. However, after thorough consideration of all the evidence presented, the court concluded that the applicants killed the deceased,” Liebenberg stated in his ruling, adding that this ground, therefore, lacks merit.
Townsend also objected to the fact that no fingerprints or palm prints were found in the deceased's vehicle, in which he was killed. Liebenberg acknowledged that this fact was never in dispute.
“However, this does not exclude the applicants. In any case, this is not a valid reason for appeal and requires no further consideration.”
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