Iuze Mukube

Windhoek High Court Judge Dinah Uusiku has dismissed an application that sought her recusal in a trial of a man (36) accused of murdering his girlfriend in 2023.

Roger Beeth faces one count of murder as well as defeating or obstructing the course of justice.

The State alleges that Beeth intentionally and unlawfully killed his girlfriend, Bertha Witbooi, near Otjinene, between 3 and 4 March 2023.

It further alleges that he attempted to commit the second count by burning a stick allegedly linked to the incident and falsely telling police and others that the deceased had arrived home already injured after being assaulted elsewhere.

The recusal application flowed from a trial-within-a-trial where the accused was disputing a confession he allegedly made to officers.

He had contested the admissibility on the basis that his constitutional right against self-incrimination was not sufficiently explained.

Midst the proceedings, Beeth’s lawyer Joas Neemwatya instituted the application on the basis that the court prejudged a legal issue that had yet to be argued.

The conduct of the court in managing the trial-within-a-trial does not evince cogent and convincing evidence that the court was biased.

The lawyer contended that the judge prejudged a legal issue that was supposed to be determined in the trial-within-a-trial, hence depriving the accused an opportunity to state his case before an impartial court for determination.

The legal issue was whether the accused was properly informed of his rights by an inspector irrespective of whether Beeth had indicated that he wished to confess before said rights were told to him.

According to the counsel, the judge’s comment during the testimony of a state witness that “according to me, based on the information on this pro forma, I believe the accused was given an opportunity to make an informed decision” was made before the next witness could testify and before the accused could place his version before the court.

The lawyer contended that the comment effectively determined the exact legal issue that was to be determined in the trial-within-a-trial. Therefore, he argued that the comment created a reasonable apprehension of bias in the mind of the accused, citing the court will not bring an impartial mind to bear on the adjudication of the matter as it had already prejudged the issue. He contended that the prejudgment made the court no longer open to persuasion as it had already made up its mind regarding the issue.

Judge Usiku found that from the record, the witness had already testified in chief that he explained the applicant’s rights to him, including the one against self-incrimination.

She also found that the “court may not sit back as an umpire whilst a document admitted as evidence before court is used in a manner that may mislead the witness because it is devoid of context.”

“The court has a duty to see to it that justice is done,” she added.

She also stated that allowing the contextualising of a document that is already before court, as was being done by the lawyer, cannot be seen as an indication of bias.

“Counsel cannot argue a part of a document and evade other parts thereof as if those parts are not contained in the same document.”

She found that as much as the court is required to recuse itself when the test for recusal is satisfied, it has an equal duty not to recuse itself where the facts of the matter do not warrant recusal.

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