The ruling on the admissibility of the reports by the psychiatrists who declared Marcus Thomas – the American national charged in the Windhoek High Court with murder – fit to stand trial is set to be delivered on October 19.
This was confirmed by Judge Christi Liebenberg after he heard submissions from both State and defense counsels on the admissibility of the reports by local psychiatrist Dr Reinhardt Sieberhagen and clinical psychiatrist Professor Tuviah Zabow, as well as a report from clinical psychologist Willem Annandale.
James Diedericks, who represented Marcus Kevin Thomas – Accused 1 in the murder trial – argued that the report of Annandale cannot be ruled admissible for the mere fact that it breaches the provisions of the Criminal Procedure Act of Namibia.
According to Diedericks, the provisions of the Act that deals with mental observation of accused persons only allows psychiatrists to compile reports and not psychologists.
For that reason alone, the report of Annandale cannot be allowed into evidence, as it would severely prejudice his client, Diedericks argued.
He said in the instance that Annandale’s report is quashed, the reports of Sieberhagen and Zabow can also not be allowed, as they are primarily based on Annandale findings.
He maintained that the two psychiatrists did not observe his client proficiently and only spent limited time interviewing him. He also said the two experts did not conduct any of the tests to base their findings on, but used the outcomes of the tests reported in Annandale’s report.
This, he said, was not enough to gain sufficient information to pronounce themselves on his client’s mental health. For that reason, he argued, if the findings in Annandale’s report are ruled inadmissible, the findings the two experts made by drawing on the said report would be equally inadmissible as evidence.
Deputy Prosecutor General Advocate Antonia Verhoef noted that psychiatrists do not usually conduct the test themselves, but rely on psychologists and other experts trained to conduct such tests and they (psychiatrists) then analyse the results of such tests. She said that also happened in this instance.
Annandale was contracted by the superintendent of the mental hospital in Windhoek to conduct the tests on behalf of Zabow and Sieberhagen.
The experts, she said, did not have to physically observe Thomas, as there were other ways to gain knowledge about his behaviour. These included interviews with prison personnel about his day-to-day behaviour, as well as interviews with hospital personnel, where he was observed and reports submitted.
According to Verhoef, the work done by the experts was sufficient and the reports should be admitted as evidence. In the event the court rules that the accused is fit to stand trial, but not criminally liable for his actions, she said, a trial must be held to determine whether he actually committed the act he is on trial for, before he can be declared a ward of the president.
Thomas and his co-accused, Kevan Townsend, are accused of killing Andre Heckmair with a single gunshot to the back of his head on January 7, 2011 at Gusinde Street in Klein Windhoek and robbing him of his cellphone and wallet containing at 100 Swiss Franc.
Townsend is represented by Mbanga Siyomunji on instructions from Legal Aid.