A defence lawyer in the long running trial of double murder and defeating or obstructing, or attempting to defeat the course of justice, argued yesterday that his client was never lawfully arrested or charged.
According to Titus Mbaeva who is representing 40-year-old Raynoldt (Jacky) Windstaan in the well murder trial, evidence had come to the fore during a protracted trial-within-a-trial on the admissibility of certain admissions, that his client was never lawfully charged with the offence for which he has stood trial since the commencement of the case in court.
Neither was the double murder accused formerly arrested for murder, Mbaeva argued before the High Court.
Mbaeva based his argument on the fact that a warning statement made after Windstaan was arrested and allegedly warned for what offence he was arrested was not part of the court file.
He said Windstaan was in custody on a charge of robbery during 2009 when allegations of a murder at farm Omamas began surfacing.
He said the officer who arrested Windstaan on the robbery charge allegedly obtained statements from a previous girlfriend of Windstaan and two of his sisters relating to the murders allegedly committed by him.
Evidence led so far in the trial suggests Windstaan suffered from nightmares related to the murder of two men and discarding their bodies in an unused well on a farm in the vicinity.
Mbaeva further stated that since his client was never warned, anything he might say in connection with the murders cannot be held against him as he was not warned in connection with the charges.
He wants the court to stay the prosecution of Windstaan and order his release from detention.
State Advocate Erich Moyo objected.
Judge Naomi Shivute said she would deliver her ruling on the application next week Tuesday, February 16.
The ruling on the trial-within-a-trial on the admissibility of a warning statement, pointing out and alleged confession 40-year old Johannes Eichab, Windstaan’s co-accused, made after his arrest is expected on March 03 which will possibly then dictate the further direction of the case.
Windstaan and Eichab face two counts of murder and one count of defeating or obstructing or attempting to defeat the course of justice.
It is alleged they murdered 42-year-old Klaas Titus and 39-year-old John McNab during the period of July 16 to 18 2005 in the Mariental district and threw the deceased’s bodies into a deep and isolated well from which it is impossible to escape without assistance on farm Good Hope.